Exhibit 4(ii)
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[JPMorgan LOGO]
FIVE-YEAR CREDIT AGREEMENT
dated as of
July 29, 2005,
among
PALL CORPORATION
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J. P. MORGAN EUROPE LIMITED, as London
Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
and
NORTH FORK BANK,
UBS LOAN FINANCE LLC,
and
WACHOVIA BANK, N.A.,
as Co-Documentation Agents
---------------------------
J.P. MORGAN SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms.................................................................1
SECTION 1.02. Classification of Loans and Borrowings.......................................26
SECTION 1.03. Terms Generally..............................................................26
SECTION 1.04. Accounting Terms; GAAP.......................................................26
SECTION 1.05. Currency Translation.........................................................26
ARTICLE II
The Credits
SECTION 2.01. Commitments..................................................................27
SECTION 2.02. Loans and Borrowings.........................................................27
SECTION 2.03. Requests for Revolving Borrowings............................................28
SECTION 2.04. Competitive Bid Procedure....................................................29
SECTION 2.05. Swingline Loans..............................................................31
SECTION 2.06. Letters of Credit............................................................32
SECTION 2.07. Funding of Borrowings........................................................37
SECTION 2.08. Interest Elections...........................................................38
SECTION 2.09. Termination and Reduction of Commitments; Increase of Commitments............39
SECTION 2.10. Repayment of Loans; Evidence of Debt.........................................41
SECTION 2.11. Prepayment of Loans..........................................................42
SECTION 2.12. Fees.........................................................................43
SECTION 2.13. Interest.....................................................................44
SECTION 2.14. Alternate Rate of Interest...................................................45
SECTION 2.15. Increased Costs..............................................................46
SECTION 2.16. Break Funding Payments.......................................................47
SECTION 2.17. Taxes........................................................................48
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..................49
SECTION 2.19. Mitigation Obligations; Replacement of Lenders...............................51
SECTION 2.20. Additional Reserve Costs.....................................................52
SECTION 2.21. Redenomination of Certain Alternative Currencies.............................52
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ARTICLE III
Representations and Warranties
SECTION 3.01. Existence, Qualification and Power; Compliance with Laws.....................53
SECTION 3.02. Authorization; No Contravention..............................................53
SECTION 3.03. Governmental Authorization; Other Consents...................................54
SECTION 3.04. Binding Effect...............................................................54
SECTION 3.05. Financial Statements; No Material Adverse Effect.............................54
SECTION 3.06. Litigation...................................................................54
SECTION 3.07. No Default...................................................................55
SECTION 3.08. Ownership of Property; Liens.................................................55
SECTION 3.09. Environmental Compliance.....................................................55
SECTION 3.10. Insurance....................................................................55
SECTION 3.11. Taxes........................................................................55
SECTION 3.12. ERISA Compliance.............................................................56
SECTION 3.13. Subsidiaries; Equity Interests...............................................56
SECTION 3.14. Margin Regulations; Investment Company Act; Public Utility
Holding Company Act..........................................................56
SECTION 3.15. Disclosure...................................................................57
SECTION 3.16. Compliance With Laws.........................................................57
SECTION 3.17. Permits and Licenses, Etc....................................................57
SECTION 3.18. Labor Disputes and Acts of God...............................................57
SECTION 3.19. Specially Designated Nationals or Blocked Persons List.......................57
ARTICLE IV
Conditions
SECTION 4.01. Effective Date...............................................................57
SECTION 4.02. Each Credit Event............................................................59
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements.........................................................59
SECTION 5.02. Certificates; Other Information..............................................60
SECTION 5.03. Notices......................................................................62
SECTION 5.04. Payment of Obligations.......................................................63
SECTION 5.05. Preservation of Existence, Etc...............................................63
SECTION 5.06. Maintenance of Properties....................................................63
SECTION 5.07. Maintenance of Insurance.....................................................64
SECTION 5.08. Compliance with Laws.........................................................64
SECTION 5.09. Books and Records............................................................64
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SECTION 5.10. Inspection Rights............................................................64
SECTION 5.11. Use of Proceeds..............................................................64
SECTION 5.12. Guarantee Requirement........................................................64
SECTION 5.13. Environmental Laws...........................................................65
SECTION 5.14. Borrower Ratings.............................................................65
ARTICLE VI
Negative Covenants
SECTION 6.01. Liens........................................................................65
SECTION 6.02. Investments..................................................................66
SECTION 6.03. Priority Indebtedness........................................................67
SECTION 6.04. Fundamental Changes..........................................................67
SECTION 6.05. Dispositions.................................................................68
SECTION 6.06. Restricted Payments..........................................................68
SECTION 6.07. Change in Nature of Business.................................................69
SECTION 6.08. Transactions with Affiliates.................................................69
SECTION 6.09. Burdensome Agreements........................................................69
SECTION 6.10. Use of Proceeds..............................................................69
SECTION 6.11. Financial Covenants..........................................................69
SECTION 6.12. Hazardous Materials..........................................................69
SECTION 6.13. Certain Agreements, Amendment and Waivers....................................70
SECTION 6.14. Inactive Domestic Subsidiaries...............................................70
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default............................................................70
SECTION 7.02. Remedies Upon Event of Default...............................................72
SECTION 7.03. Application of Funds.........................................................73
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices......................................................................76
SECTION 9.02. Waivers; Amendments..........................................................76
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SECTION 9.03. Expenses; Indemnity; Damage Waiver...........................................77
SECTION 9.04. Successors and Assigns.......................................................79
SECTION 9.05. Survival.....................................................................82
SECTION 9.06. Counterparts; Integration; Effectiveness.....................................82
SECTION 9.07. Severability.................................................................83
SECTION 9.08. Right of Setoff..............................................................83
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process...................83
SECTION 9.10. WAIVER OF JURY TRIAL.........................................................84
SECTION 9.11. Headings.....................................................................84
SECTION 9.12. Confidentiality..............................................................84
SECTION 9.13. Interest Rate Limitation.....................................................85
SECTION 9.14. Conversion of Currencies.....................................................85
SECTION 9.15. Releases of Guarantees.......................................................85
SECTION 9.16. USA Patriot Act..............................................................85
SECTION 9.17. Waiver Under Existing Credit Agreement.......................................85
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SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.06 -- Existing Letters of Credit
Schedule 3.09 -- Environmental Compliance
Schedule 3.11 -- Tax-Sharing Agreements
Schedule 3.13 -- Subsidiaries and Affiliates
Schedule 6.01 -- Existing Liens
Schedule 6.02 -- Other Investments
Schedule 6.14 -- Inactive Domestic Subsidiaries
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Borrower's Counsel's Opinion
Exhibit C -- Form of Guaranty Agreement
Exhibit D -- Mandatory Costs Rate
Exhibit E -- Form of Note
Exhibit F -- Form of Compliance Certificate
FIVE-YEAR CREDIT AGREEMENT dated as of July 29, 2005, among
Pall Corporation, a New York corporation; the LENDERS party hereto; JPMORGAN
CHASE BANK, N.A., as Administrative Agent; and J. P. Morgan Europe Limited, as
London Agent.
The Borrower (such term and the other capitalized terms used
and not otherwise defined herein having the meanings assigned to them in Article
I) has requested the Lenders to extend credit to enable them to (a) borrow on a
revolving credit basis on and after the date hereof and at any time and from
time to time prior to the Maturity Date a principal amount not in excess of
US$350,000,000 at any time outstanding, (b) obtain Letters of Credit in an
aggregate stated amount not in excess of US$50,000,000 at any time outstanding
and (c) provide a procedure under which Lenders may bid on an uncommitted basis
on short-term borrowings by the Borrower maturing on or prior to the Maturity
Date. The proceeds of such borrowings are to be used for the financing of
working capital requirements and other general corporate purposes of the
Borrower and the Subsidiaries, including the redemption, repurchase or
defeasance of the 7.83% Senior Notes, the refinancing of the Existing Credit
Agreement and other indebtedness and the financing of Permitted Acquisitions.
The Letters of Credit will be used for general corporate purposes of the
Borrower and the Subsidiaries. The Lenders are willing to extend such credit to
the Borrower on the terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"6.00% Senior Notes" means the 6.00% senior notes due August
1, 2012 issued by the Borrower pursuant to the Indenture.
"7.83% Senior Notes" means the 7.83% senior notes due August
29, 2010 issued by the Borrower.
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as
Administrative Agent for the Lenders hereunder and under the Loan Documents or,
as applicable, such
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Affiliates thereof as it shall from time to time designate by notice to the
Borrower and the Lenders for the purpose of performing its obligations
hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent and the
London Agent.
"Agreement" means this Credit Agreement, as modified, amended
or restated from time to time.
"Agreement Currency" has the meaning assigned to such term in
Section 9.14(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternative Currency" means (a) Sterling, Euro and Yen and
(b) any other currency that may be requested by the Borrower in a notice to the
Administrative Agent, and agreed upon by all the Lenders, that is freely
transferable and convertible into US Dollars in the London market and for which
LIBO Rates can be determined by reference to the Telerate screen as provided in
the definition of "LIBO Rate".
"Applicable Agent" means (a) with respect to a Loan or
Borrowing denominated in US Dollars or any Letter of Credit, and with respect to
any payment hereunder that does not relate to a particular Loan or Borrowing,
the Administrative Agent and (b) with respect to a Loan or Borrowing denominated
in any Alternative Currency, the London Agent.
"Applicable Creditor" has the meaning assigned to such term in
Section 9.14(b).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
3
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Facility Fee Rate" or "Eurocurrency Spread", as applicable,
based upon (a) the ratings by S&P and Moody's, respectively, applicable on such
date to the Index Debt and (b) in the case of the Eurocurrency Spread, the
Utilization on such date:
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Facility Fee Eurocurrency
Index Debt Ratings: Rate Spread
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Utilization is Utilization is
less than or greater than
equal to 50% 50%
- ----------------------------------------------------------------------------------------------------------
Category 1 0.080% 0.27% 0.37%
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A/A2 or higher
- ----------------------------------------------------------------------------------------------------------
Category 2 0.090% 0.31% 0.41%
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A-/A3
- ----------------------------------------------------------------------------------------------------------
Category 3 0.100% 0.35% 0.45%
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BBB+/Baa1
- ----------------------------------------------------------------------------------------------------------
Category 4 0.125% 0.45% 0.55%
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BBB/Baa2
- ----------------------------------------------------------------------------------------------------------
Category 5 0.150% 0.55% 0.65%
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BBB-/Baa3
- ----------------------------------------------------------------------------------------------------------
Category 6 0.200% 0.75% 0.85%
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BB+/Ba1 or lower
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For purposes of the foregoing, (i) if either S&P or Moody's
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 6;
(ii) if the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two ratings unless one of
the two ratings is two or more Categories lower than the other, in which case
the Applicable Rate shall be determined by reference to the Category next above
that of the lower of the two ratings; and (iii) if the ratings established or
deemed to have been established by S&P and Moody's for the Index Debt shall be
changed (other than as a result of a change in the rating system of S&P or
Moody's), such change shall be effective as of the date on which it is first
announced by the applicable rating agency, irrespective of when notice of such
change shall have been furnished by the Borrower to the Agent and the Lenders
pursuant to Section 5.03(e) or otherwise. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of S&P or Moody's shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of
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any such amendment, the Applicable Rate shall be determined by reference to the
rating most recently in effect prior to such change or cessation.
"Approved Fund" has the meaning assigned to such term in
Section 9.04.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A 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 or any
Sale-Leaseback Transaction that does not result in a Capital Lease, 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 the Subsidiaries as at July 31, 2004, and the
related audited consolidated statements of earnings, shareholders' equity and
cash flows of the Borrower and the Subsidiaries for the Fiscal Year then ended,
including the notes thereto.
"Augmenting Lender" has the meaning set forth in Section
2.09(d)(i).
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Pall Corporation, a New York corporation.
"Borrower Materials" has the meaning set forth in Section
5.02.
"Borrowing" means (a) Revolving Loans of the same Class, Type
and currency, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a
Competitive Loan or group of Competitive Loans of the same Type made on the same
date and as to which a single Interest Period is in effect or (c) a Swingline
Loan.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000 and (b) in the case of a Borrowing
denominated in any Alternative Currency, the smallest amount of such Alternative
Currency that is a multiple of 5,000,000 units of such currency that has a US
Dollar Equivalent in excess of US$5,000,000.
5
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, US$1,000,000 and (b) in the case of a Borrowing
denominated in any Alternative Currency, 1,000,000 units of such currency.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided, that (a) when used in connection with a
Eurocurrency Loan denominated in any currency, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in deposits
denominated in such currency in the London interbank market, (b) when used in
connection with a Loan denominated in Euro, the term "Business Day" shall also
exclude any day on which the TARGET payment system is not open for the
settlement of payments in Euro and (c) when used in connection with a Loan
denominated in Yen, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in Yen in Tokyo.
"Calculation Date" means (a) the last Business Day of each
calendar quarter and (b) solely with respect to any Alternative Currency for a
requested new Borrowing for which an Exchange Rate was not established on the
immediately preceding Calculation Date, the Business Day immediately preceding
the date on which such Borrowing is to be made; provided that the Administrative
Agent may in addition designate the last day of any other month as a Calculation
Date if it reasonably determines that there has been significant volatility in
the foreign currency markets.
"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. The amount of any Capital Lease as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
"Cash Collateralize" has the meaning set forth in Section
2.06(j).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"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
6
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
(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 Interests 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.
"Charges" has the meaning set forth in Section 9.13.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Competitive Loans or Swingline Loans.
"Closing Date" means the date of this Agreement.
7
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate permitted amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its Commitment,
as applicable. The initial aggregate amount of the Lenders' Commitments is
US$350,000,000.
"Commitment Increase" has the meaning set forth in Section
2.09(d)(i).
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit F.
"Consolidated EBITDA" means, for any four consecutive fiscal
quarter period, for the Borrower and the Subsidiaries on a consolidated basis,
an amount equal to the Consolidated Net Income (Net Loss) of the Borrower and
the 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 the 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, (b) interest income, determined in accordance with
GAAP applied on a consistent basis and (c) income tax credits or refunds from
any government or governmental instrumentality recorded on the Borrower's or the
Subsidiaries' books. All the foregoing categories shall be calculated with
respect to the Borrower and the 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.
8
"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 the 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 the 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 the Subsidiaries with respect to such period under Capital Leases
that is treated as interest in accordance with GAAP.
"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 the 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 the
Subsidiaries, in each case for the four fiscal quarter period ending on such
date.
"Consolidated Net Tangible Assets" means, at any time,
Consolidated Tangible Assets minus all current liabilities of the Borrower and
the Subsidiaries, all as set forth in the most recent consolidated balance sheet
of the Borrower and the Subsidiaries delivered pursuant to Section 5.01 (or,
prior to any such delivery, referred to in Section 3.05) as of such date of
determination, determined on a consolidated basis in accordance with GAAP.
9
"Consolidated Tangible Assets" means, at any time, the
aggregate amount of assets (less applicable accumulated depreciation, depletion
and amortization and other reserves and other properly deductible items) of the
Borrower and the Subsidiaries minus all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other intangible assets of
the Borrower and the Subsidiaries, all as set forth in the most recent
consolidated balance sheet of the Borrower and the Subsidiaries delivered
pursuant to Section 5.01 (or, prior to any such delivery, referred to in Section
3.05) as of such date of determination, determined on a consolidated basis in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies, or the
dismissal or appointment of the management, of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"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 which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"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 receivables or any
rights and claims associated therewith.
"Domestic Subsidiary" shall mean a Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Eligible Investments" means (a) direct obligations of the
United States of America or any governmental agency thereof which are fully
guaranteed or insured by the United States of America; provided that such
obligations mature within two years from the date of acquisition thereof; (b) US
Dollar denominated certificates of time deposit maturing within one year issued
by any bank organized and existing under the laws of the United States of
America or any state thereof and having aggregate capital and surplus in excess
of $1,000,000,000; (c) money market mutual funds having assets in excess of
$1,000,000,000; (d) commercial paper rated not less than P-1 or A-1 or their
equivalent by Moody's or S&P, respectively; (e) tax exempt securities of an
issuer
10
organized in the United States of America rated A or better by Moody's or S&P;
(f) repurchase agreements entered into with any bank, trust company or financial
institution organized under the laws of the United States of America 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; (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 $50,000,000, at any one time outstanding; or (h) cash.
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"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.
"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 from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
11
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" (as defined in
Section 4043 of ERISA) 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.
"Euro" or "(euro)" means the single currency of the European
Union as constituted by the Treaty on European Union and as referred to in the
EMU Legislation.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Exchange Rate" means on any day, for purposes of determining
the US Dollar Equivalent of any other currency, the rate at which such other
currency may be exchanged into US Dollars at the time of determination on such
day on the Reuters WRLD Page for such currency. In the event that such rate does
not appear on any Reuters WRLD Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Applicable Agent and the Borrower, or, in the
absence of such an agreement, such Exchange Rate shall instead be the arithmetic
average of the spot rates of exchange of the Applicable Agent in the market
where its foreign currency exchange operations in respect of such currency are
then being conducted, at or about such time as the Applicable Agent shall elect
after determining that such rates shall be the basis for determining the
Exchange Rate, on such date for the purchase of US Dollars for delivery two
Business
12
Days later; provided that if at the time of any such determination, for
any reason, no such spot rate is being quoted, the Applicable Agent may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Subsidiary" means any Subsidiary that is (a) an
Inactive Domestic Subsidiary, (b) a Foreign Subsidiary or (c) a Securitization
Entity.
"Excluded Taxes" means, with respect to either Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, the jurisdiction in which its applicable lending office is located, (b)
any branch profit taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction in which such recipient is located and (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.19(b)), any withholding tax that is imposed by the
United States of America on payments by the Borrower to such Foreign Lender from
locations in the United States of America on amounts payable at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.17(e), except to the extent that (i) such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a) or (ii) such
withholding tax shall have resulted from the making of any payment to a location
other than the office designated by the Applicable Agent or such Lender for the
receipt of payments of the applicable type from the Borrower.
"Existing Credit Agreement" means the Credit Agreement dated
as of August 24, 2004, as amended, among the Borrower, the lenders party thereto
and JPMCB, as administrative agent.
"Existing Letters of Credit" means each letter of credit
previously issued for the account of the Borrower pursuant to the Existing
Credit Agreement that is (a) outstanding on the Effective Date and (b) listed on
Schedule 2.06, but shall not include any renewal or extension of any Existing
Letter of Credit other than an Existing Letter of Credit issued by JPMCB or an
Affiliate thereof.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
13
"Financed Portion" means, at any time, with respect to a
Securitization Transaction, the greatest amount of the claims of the parties
providing financing (whether through direct purchases of receivables or
interests therein or through other financing arrangements), however evidenced,
including direct claims on collections of a party providing financing and
including debt or equity interests or securities (other than any seller's
interests retained by any wholly owned Subsidiary) of a purchasing vehicle,
permitted to be outstanding at such time under such Securitization Transaction
(assuming the satisfaction of all conditions to issuance) or, if greater, the
maximum purchase limit, however denominated, under such Securitization
Transaction.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"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.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"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 of America, any other nation or 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.
"Guarantee" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing
14
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.
"Guaranty Agreement" means the Guaranty Agreement among the
Subsidiary Loan Parties and the Administrative Agent, substantially in the form
of Exhibit C.
"Guarantee Requirement" means, at any time on or after the
Effective Date, the requirement that:
(i) Administrative Agent shall have received from each
Subsidiary Loan Party either (i) a counterpart of the Guaranty
Agreement, duly executed and delivered on behalf of such Subsidiary
Loan Party, or (ii) in the case of any Person that becomes a Subsidiary
Loan Party after the Effective Date, a supplement to the Guaranty
Agreement, in the form specified therein, duly executed and delivered
on behalf of such Subsidiary Loan Party, and in each case, the Guaranty
Agreement and, if applicable, such supplement to the Guaranty
Agreement, shall be in full force and effect and enforceable against
each such Subsidiary Loan Party; and
(ii) each Subsidiary Loan Party shall have obtained all
consents and approvals required to be obtained by it in connection with
the execution and delivery of the Guaranty Agreement and the
performance of its obligations thereunder.
"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,
15
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 Subsidiary" means a Subsidiary (a)
identified as such on Schedule 6.14 hereto or hereafter acquired or formed by
the Borrower and designated as an "Inactive Domestic Subsidiary" by written
notice to the Administrative Agent and (b) that does not own any assets (other
than nominal assets) or conduct any operations, or directly or indirectly own
any Equity Interests in any Subsidiary other than other Inactive Domestic
Subsidiaries.
"Increase Effective Date" has the meaning set forth in Section
2.09(d)(ii).
"Increasing Lender" has the meaning set forth in Section
2.09(d)(i).
"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: (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; (h) all
Guarantees of such Person in respect of any of the foregoing; and (i) all
Securitization Transactions. 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
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.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
16
"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 the 6.00% Senior Notes were issued.
"Index Debt" means senior, unsecured, Long-Term Indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Initial Loans" has the meaning set forth in Section
2.09(d)(ii).
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan
(including any Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period and (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 14 days or more
than 180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
17
"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, 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, 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.
"Issuing Bank" means JPMCB, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i) and, in respect of the Existing Letters of Credit only, the
issuers of such Existing Letters of Credit, as set forth in Schedule 2.06. The
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"JPMCB" means JPMorgan Chase Bank, N.A. and its successors.
"Judgment Currency" has the meaning assigned to such term in
Section 9.14(b).
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amounts of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement and each Existing Letter of Credit.
"Letter of 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.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
denominated in any currency for any Interest Period, the rate appearing on the
applicable
18
page of the Telerate Service for such currency (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Applicable Agent from time to
time for purposes of providing quotations of interest rates applicable to
deposits in the London interbank market) at approximately 11:00 a.m., London
time, on the Quotation Date for such Interest Period, as the rate for deposits
in such currency with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest Period
shall be the rate at which deposits in such currency the US Dollar Equivalent of
which is US$5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"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 Documents" means this Agreement, the Guaranty Agreement
and each supplement thereto and each promissory note delivered pursuant to this
Agreement, as such documents may be amended, modified, supplemented or restated
from time to time.
"Loan Parties" means the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing
denominated in US Dollars or any Letter of Credit, New York City time, and (b)
with respect to a Loan or Borrowing made in any other currency, London time.
"London Agent" means J. P. Morgan Europe Limited.
"Long-Term Indebtedness" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
"Mandatory Costs Rate" has the meaning set forth in Exhibit D.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
19
"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 and the 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 July 29, 2010, or, if such day is not a
Business Day, the next preceding Business Day.
"Maximum Rate" has the meaning set forth in Section 9.13.
"Moody's" means Moody's Investors Service, Inc.
"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.
"Non-Increasing Lender" has the meaning set forth in Section
2.09(d)(i).
"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 the 7.83% Notes.
"Obligations" means all advances to, debts, liabilities,
obligations, covenants and duties of, and fees, expenses, indemnities and other
amounts payable by, 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.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Outstanding Amount" means (i) with respect to Loans and
Swingline Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Loans and
Swingline Loans, as the case may be, occurring on such date; and (ii) with
respect to any LC Exposure on any date, the amount of such LC Exposure on such
date after giving effect to any Letter of Credit Extension occurring on such
date and any other changes in the aggregate amount
20
of the LC Exposure as of such date, including as a result of any reimbursements
by the Borrower of Unreimbursed Amounts.
"Participant" has the meaning set forth in Section 9.04(c)(i).
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"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.
"Permitted Acquisition" means an acquisition (whether pursuant
to an acquisition of Equity Interests, assets or otherwise) by the Borrower or
any of the Subsidiaries from any Person or Persons of a business that is
substantially similar (a) to any line of business conducted by the Borrower
and/or the Subsidiaries on the date hereof or (b) to any business substantially
related to or incidental to those lines of business conducted by the Borrower
and/or the Subsidiaries on the date hereof and in which the following conditions
are satisfied: (i) 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; (ii) immediately before and after giving effect to such
acquisition, no Default shall have occurred and be continuing or would result
therefrom; (iii) if the acquisition is of Equity Interests of a Person, such
Person becomes a Subsidiary; (iv) 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 2.75 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 a methodology
which is consistent with the most recent financial statements delivered pursuant
to Section 5.01) 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 6.11.
"Permitted Lien" has the meaning set forth in Section 6.01.
21
"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.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMCB, 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.
"Priority Indebtedness" means the sum, without duplication,
for the Borrower and the Subsidiaries, of (i) all Indebtedness secured by any
Lien on any assets of the Borrower or any Subsidiary and (ii) all Indebtedness
referred to in clauses (f) and (i) of the definition of "Indebtedness" and (c)
all Sale-Leaseback Transactions.
"Public Lender" has the meaning set forth in Section 5.02.
"Quotation Date" means (i) with respect to any Eurocurrency
Borrowing denominated in any currency other than Sterling for any Interest
Period, two Business Days prior to the commencement of such Interest Period and
(ii) with respect to any Eurocurrency Borrowing denominated in Sterling for any
Interest Period, the first Business Day of such Interest Period.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, trustees, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any actual or threatened release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into or through the environment or within or
upon any building, structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures and unused Commitments representing more than 50% of the sum
of the total Revolving Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Exposures in determining the Required Lenders.
"Responsible Officer" means the chief executive officer,
president, vice-president-finance, controller, chief financial officer,
treasurer, director of treasury operations, secretary or general counsel of a
Loan Party or any other person authorized
22
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
6.06.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum at such time, without duplication, of (a) the US Dollar
Equivalents of the principal amounts of such Lender's outstanding Revolving
Loans, (b) the aggregate amount of such Lender's LC Exposure and (c) the
aggregate amount of such Lender's Swingline Exposure.
"Revolving Loan" means a Loan made pursuant to Sections 2.01
and 2.03.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., and its successors.
"Sale-Leaseback Transaction" means any arrangement whereby the
Borrower or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and, as
part of such arrangement, rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred. The amount of any Sale-Leaseback Transaction as of any date
shall be deemed to be the amount of Attributable Indebtedness in respect thereof
as of such date.
"SEC" means the Securities and Exchange Commission.
"Securitization Entity" means any wholly owned subsidiary of
the Borrower that is engaged solely in the purchase of accounts receivable of
the Borrower or any Subsidiary or interests therein and the resale or financing
of such accounts receivable or interests, in each case as part of a
Securitization Transaction.
"Securitization Transaction" means any transfer by the
Borrower or any Subsidiary of accounts receivable or interests therein (a) to a
trust, partnership, corporation or other entity, which transfer is funded in
whole or in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of Indebtedness, fractional undivided
interests or securities that are to receive payments from, or that represent
interests in, the cash flow derived from such accounts receivable or interests,
or (b) directly to one or more investors or other purchasers. The amount of any
Securitization Transaction shall be deemed at any time to be the aggregate
principal or stated amount of the Indebtedness, fractional undivided interests
or other securities referred to in the preceding sentence or, if there shall be
no such principal or stated amount, the uncollected amount of the accounts
receivable transferred pursuant to such Securitization Transaction net of any
such accounts receivable that have been written off as uncollectible.
23
"Senior Notes" means, collectively, (a) the 7.83% Notes and
(b) the 6.00% Senior Notes.
"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.
"Statutory Reserve Rate" means, with respect to any currency,
a fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset, fees or similar requirements (including any
marginal, special, emergency or supplemental reserves or other requirements)
established by any central bank, monetary authority, the Board, the Financial
Services Authority, the European Central Bank or other Governmental Authority
for any category of deposits or liabilities customarily used to fund loans in
such currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of US Dollar denominated Loans, include
those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be
deemed to be subject to such reserve, liquid asset or similar requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under any applicable law, rule or
regulation, including Regulation D. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve,
liquid asset, fee or similar requirement. The Statutory Reserve Rate shall in no
event include any reserve, liquid asset, fee or similar requirement for which
the Lenders are entitled to compensation under Section 2.20.
"Sterling" or "(pound)" means the lawful currency of the
United Kingdom.
"Subordinated Indebtedness" means all Indebtedness which is
subordinated in right of payment to the obligations of the Borrower and/or of
its Subsidiaries to the Lenders hereunder and under any other Loan Document.
"Subsequent Borrowings" has the meaning set forth in Section
2.09(d)(ii).
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other
24
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" means any direct or indirect subsidiary of the
Borrower.
"Subsidiary Loan Party" means any Subsidiary that is not an
Excluded Subsidiary.
"Swap Contract" means (a) any rate swap transaction, basis
swap, credit derivative transaction, forward rate transaction, commodity swap,
commodity option, forward commodity contract, equity or equity index swap or
option, bond or bond price or bond index swap or option or forward bond or
forward bond price or forward bond index transaction, interest rate option,
forward foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option, spot contract, or any other similar transaction or any
combination of any of the foregoing (including any option 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. 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.
"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).
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its
capacity as lender of Swingline Loans hereunder.
25
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"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). The amount
of any Synthetic Lease Obligation as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date.
"TARGET" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) payment system.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Threshold Amount" means $10,000,000.
"Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is or is to be a party, the
satisfaction of the Guarantee Requirement, the borrowing of Loans and the
issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
"Unreimbursed Amount" has the meaning set forth in Section
2.06(e).
"US Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount, and (b) with respect
to any amount in any Alternative Currency, the equivalent in US Dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05 using
the Exchange Rate with respect to such Alternative Currency at the time in
effect under the provisions of such Section.
"US Dollars" or "US$" means the lawful currency of the United
States of America.
"Utilization" means, on any date, the aggregate Revolving
Exposures on such date expressed as a percentage of the total Commitments.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Yen" or "(Yen)" means the lawful currency of Japan.
26
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally. 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 (a) any definition of or
reference to any agreement, instrument or other document herein 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),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) 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.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision shall have been amended in accordance herewith.
SECTION 1.05. Currency Translation. (a) For purposes of any
determination under Section 6.01, 6.02 or 6.03 or under paragraph (e) or (h) of
Section 7.01, all amounts incurred, outstanding or proposed to be incurred or
outstanding in currencies other than US Dollars shall be translated into US
Dollars at currency exchange rates in effect on the date of such determination;
provided that no Default or Event of Default shall arise as a result of any
limitation set forth in US Dollars in Section 6.01, 6.02 or 6.03 being exceeded
solely as a result of changes in currency exchange rates from those rates
applicable at the time or times any transactions were initially
27
consummated in reliance on the exceptions under such Sections. For purposes of
any determination under Section 6.05, the amount of each Disposition or other
applicable transaction denominated in a currency other than US Dollars shall be
translated into US Dollars at the applicable currency exchange rate in effect on
the date such Disposition or other transaction is consummated. Such currency
exchange rates shall be determined in good faith by the Borrower.
(b) The Administrative Agent shall (A) determine the US Dollar
Equivalent of any Borrowing denominated in an Alternative Currency as of the
date of the commencement of the initial Interest Period therefor and as of the
date of the commencement of each subsequent Interest Period therefor, in each
case using the Exchange Rate for the applicable currency in relation to US
Dollars in effect on the date that is three Business Days prior to the date on
which the applicable Interest Period shall commence, and each such amount shall
be the US Dollar Equivalent of such Borrowing until the next required
calculation thereof pursuant to this paragraph and (B) notify the Borrower and
the Lenders of each calculation of the US Dollar Equivalent of each Borrowing.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower,
denominated in US Dollars or Alternative Currencies, from time to time during
the Availability Period in amounts that will not at any time result in (a) such
Lender's Revolving Exposure exceeding its Commitment, (b) the sum of the total
Revolving Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments or (c) the aggregate amount of
the US Dollar Equivalents of all the outstanding Revolving Loans denominated in
Alternative Currencies exceeding US$50,000,000. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans of the same
Class, Type and currency made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and Competitive Bids of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
denominated in US Dollars shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the Borrower may request in accordance herewith, (ii) each
Revolving Borrowing denominated in a Alternative Currency shall be comprised
entirely of Eurocurrency Loans, and (iii) each Competitive Borrowing shall be
comprised entirely of Eurocurrency
28
Loans or Fixed Rate Loans as the Borrower may request in accordance herewith.
Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum. At the time that each ABR Revolving Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of
US$100,000 and not less than US$500,000; provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e). Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of the
US$1,000,000 and not less than US$10,000,000. Each Swingline Loan shall be in an
amount that is an integral multiple of US$100,000 and not less than US$100,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of five
Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Applicable Agent of such
request by telephone or telecopy (a) in the case of a Eurocurrency Borrowing
denominated in US Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Borrowing denominated in an Alternative Currency, not later than 11:00 a.m.,
London time, four Business Days before the date of the proposed Borrowing, or
(c) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City
time, on the date of the proposed Borrowing. Each such Borrowing Request shall
be irrevocable and, if made by telephone, shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Borrowing Request in a
form approved by the Applicable Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the currency and the aggregate amount of the requested
Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
29
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period".
If no currency is specified with respect to any requested Eurocurrency
Borrowing, then the Borrower shall be deemed to have selected US Dollars. If no
election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be (A) in the case of a Borrowing denominated in US
Dollars, an ABR Borrowing and (B) in the case of a Borrowing denominated in any
other currency, a Eurocurrency Borrowing. If no Interest Period is specified
with respect to any requested Eurocurrency Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Applicable Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans denominated
in US Dollars in an aggregate principal amount that will not result in the sum
of the total Revolving Exposures plus the aggregate principal amount of
outstanding Competitive Loans exceeding the total Commitments. To request
Competitive Bids, the Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
30
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of US$5,000,000 and an integral multiple of
US$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone or telecopy and, if made by telephone, the
Borrower shall confirm by telecopy in a form approved by the Administrative
Agent, whether and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurocurrency Competitive Borrowing, not later
than 10:30 a.m., New York City time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided that (i) the failure of the Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in
31
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of US$5,000,000 and an integral multiple of US$1,000,000; provided
further that if a Competitive Loan must be in an amount less than US$5,000,000
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of US$1,000,000 or any integral multiple thereof, and in calculating
the pro rata allocation of acceptances of portions of multiple Competitive Bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of US$1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
denominated in US Dollars to the Borrower from time to time during the
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding US$10,000,000 or (ii) the sum of the total Revolving
Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the total Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to
32
the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of
such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which the Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to a Loan Party for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.06. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit denominated in US Dollars for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. From and after the Effective Date, each Existing Letter
of
33
Credit, as set forth in Schedule 2.06, shall be deemed to be a Letter of Credit
for all purposes hereof and shall be deemed to have been issued hereunder on the
Effective Date. Any Lender that issued an Existing Letter of Credit shall have
the rights of an Issuing Bank as to such Letter of Credit for purposes of this
Section 2.06.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit other than an Existing
Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed US$50,000,000 and (ii) the sum of the total Revolving
Exposures plus the aggregate principal amount of outstanding Competitive Loans
shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date; provided that at the
request of the Borrower any Letter of Credit may contain customary "evergreen"
provisions pursuant to which such Letter of Credit will, in the absence of a
notice given by the Issuing Bank, be automatically renewed (but in no event
beyond the date that is five Business Days prior to the Maturity Date) for
successive one-year periods.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by the Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of any
34
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. On the Effective
Date and without any further action by any party hereto, each Issuing Bank that
has issued an Existing Letter of Credit shall be deemed to have granted to each
Lender, and each Lender shall be deemed to have acquired from such Issuing Bank,
a participation in each such Existing Letter of Credit in accordance with the
foregoing provisions of this paragraph (d).
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 3:00 p.m., New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if the Maturity Date shall not have occurred, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing (if
such LC Disbursement is not less than US$1,000,000) or Swingline Loan (if such
LC Disbursement is not less than US$500,000) in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof (the "Unreimbursed Amount") and
such Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the Unreimbursed Amount, in the same manner as provided in Section
2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of ABR Revolving Loans or a Swingline Loan as contemplated above)
shall not
35
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None of
the Agents, the Lenders or the Issuing Bank, or any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice
36
shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement (including the right
to receive fees under Section 2.12(b)), but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit ("Cash Collateralize") in
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders and the Issuing Bank, an amount in cash
equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to Cash Collateralize shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (f) of Section
7.01. Each such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive
37
right of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds in the applicable currency (a) in the
case of an ABR Borrowing, by 1:00 p.m., New York City time and (b) in all other
cases, by 12:00 noon, Local Time, to the account of the Applicable Agent most
recently designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.05. The Applicable
Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to the following account: JPMorgan Chase
Bank, ABA # 021000021, Account # 3141073233, or such other or additional
accounts as shall be designated in a written notice signed by a Financial
Officer and delivered to the Applicable Agent; provided that ABR Revolving Loans
or Swingline Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed time of any Borrowing that such Lender will
not make available to the Applicable Agent such Lender's share of such
Borrowing, the Applicable Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section 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 Borrowing available to the Applicable Agent, then the applicable
Lender and the Borrower severally agree to pay to the Applicable Agent forthwith
on demand such corresponding amount 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 Applicable Agent, at (i) in the case of
such Lender, the greater of (x)(A) the Federal Funds Effective Rate, in the case
of Loans denominated in US Dollars, and (B) the rate reasonably determined by
the London Agent to be the cost to it of funding such amount, in the case of
Loans denominated in a Alternative Currency, and (y) a rate determined by the
Applicable Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, if denominated in US
38
Dollars, the interest rate applicable to ABR Loans and (B) if denominated in a
Alternative Currency, the interest rate applicable to the subject Loan.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone or by
telecopy by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such
Interest Election Request shall be irrevocable and, if telephonic, shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower. Notwithstanding any other provision of this Section,
the Borrower shall not be permitted to (i) change the currency of any Borrowing
or (ii) elect an Interest Period for Eurocurrency Loans that does not comply
with Section 2.02(d).
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (e) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
39
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall (i) in the case of a Borrowing denominated in US Dollars, be converted to
an ABR Borrowing and (ii) in the case of any other Eurocurrency Borrowing,
become due and payable on the last day of such Interest Period. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the Borrower, then, so long as an Event of Default is continuing (i)
no outstanding Revolving Borrowing denominated in US Dollars may be converted to
or continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Revolving Borrowing denominated in US Dollars shall be converted to
an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments;
Increase of Commitments. (a) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of the Borrowing
Multiple for US Dollar denominated Loans and not less than the Borrowing Minimum
for US Dollar denominated Loans and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.11, the sum of the Revolving Exposures
plus the aggregate principal amount of outstanding Competitive Loans would
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments
40
shall be made ratably among the Lenders in accordance with their respective
Commitments.
(d) (i) The Borrower may, at any time, by written notice to
the Administrative Agent, request that the total Commitments be increased (a
"Commitment Increase") in integral multiples of US$5,000,000; provided that at
no time shall the aggregate amount of Commitment Increases effected pursuant to
this paragraph exceed US$100,000,000. Each such notice shall set forth the
amount of the requested Commitment Increase and the date on which such
adjustment is requested to become effective (which shall be not less than 20
days or more than 45 days after the date of such notice), and shall offer each
Lender the opportunity to increase its Commitment by its Applicable Percentage
of the proposed increased amount. Each Lender shall, in its sole discretion, by
notice to the Borrower and the Administrative Agent given not more than 10
Business Days after the date of the Borrower's notice, either agree to increase
its Commitment by all or a portion of the offered amount (each Lender so
agreeing being an "Increasing Lender") or decline to increase its Commitment
(and any Lender that does not deliver such a notice within such period of 10
Business Days shall be deemed to have declined to increase its Commitment) (each
Lender so declining or deemed to have declined being a "Non-Increasing Lender").
In the event that on the 10th Business Day after the Borrower shall have
delivered a notice pursuant to the first sentence of this paragraph the
Increasing Lenders shall have agreed pursuant to the preceding sentence to
increase their Commitments by an aggregate amount less than the increase in the
total Commitments requested by the Borrower, the Borrower may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an "Augmenting Lender"), which may include any Lender,
to extend Commitments in an aggregate amount equal to the unsubscribed amount;
provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent and the Issuing Bank
(which approval in each case shall not be unreasonably withheld) and the
Borrower and each Augmenting Lender shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence the Commitment of such
Augmenting Lender and/or its status as a Lender hereunder. Any Commitment
Increase may be made in an amount less than the Commitment Increase requested by
the Borrower if the Borrower is unable to arrange for, or chooses not to arrange
for, Augmenting Lenders.
(ii) On the effective date of any Commitment Increase pursuant
to this paragraph (d) (the "Increase Effective Date"), (A) the
aggregate principal amount of the Revolving Loans outstanding (the
"Initial Loans") immediately prior to giving effect to the applicable
Commitment Increase on the Increase Effective Date shall be deemed to
be repaid, (B) after the effectiveness of the Commitment Increase, the
Borrower shall be deemed to have made new Borrowings (the "Subsequent
Borrowings") in an aggregate principal amount equal to the aggregate
principal amount of the Initial Loans and of the Types and for the
Interest Periods specified in a Borrowing Request delivered to the
Administrative Agent in accordance with Section 2.03, (C) each Lender
shall pay to the Administrative Agent in same day funds an amount equal
to the difference, if positive, between (x) such Lender's Applicable
Percentage (calculated after
41
giving effect to the Commitment Increase) of the Subsequent Borrowings
and (y) such Lender's Applicable Percentage (calculated without giving
effect to the Commitment Increase) of the Initial Loans, (D) after the
Administrative Agent receives the funds specified in clause (C) above,
the Administrative Agent shall pay to each Lender the portion of such
funds that is equal to the difference, if positive, between (1) such
Lender's Applicable Percentage (calculated without giving effect to the
Commitment Increase) of the Initial Loans and (2) such Lender's
Applicable Percentage (calculated after giving effect to the Commitment
Increase) of the amount of the Subsequent Borrowings, (E) each
Non-Increasing Lender, each Increasing Lender and each Augmenting
Lender shall be deemed to hold its Applicable Percentage of each
Subsequent Borrowing (each calculated after giving effect to the
Commitment Increase) and (F) the Borrower shall pay each Increasing
Lender and each Non-Increasing Lender any and all accrued but unpaid
interest on the Initial Loans. The deemed payments made pursuant to
clause (A) above in respect of each Eurocurrency Loan shall be subject
to indemnification by the Borrower pursuant to the provisions of
Section 2.16 if the Increase Effective Date occurs other than on the
last day of the Interest Period relating thereto and breakage costs
result.
(iii) Commitment Increases and new Commitments created
pursuant to this paragraph (d) shall become effective on the date
specified in the original notice delivered by the Borrower pursuant to
the first sentence of subparagraph (i) above. Nothing in this paragraph
(d) shall have the effect of increasing or requiring the increase of
the Commitment of any Non-Increasing Lender.
(iv) Notwithstanding the foregoing, no increase in the
Commitments (or in any Commitment of any Lender) or addition of an
Augmenting Lender shall become effective under this paragraph (d)
unless, on the date of such increase, the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect
dated such date and executed by a Financial Officer.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Applicable Agent for
the account of each Lender the then unpaid principal amount of each Revolving
Loan of such Lender on the Maturity Date, (ii) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made; provided that on each date that
a Revolving Borrowing denominated in US Dollars (including any ABR Borrowing) or
Competitive Borrowing is made, the Borrower shall repay all outstanding
Swingline Loans.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrower to
such Lender
42
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in substantially the form attached hereto as Exhibit E. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section; provided that the Borrower
shall not have the right to prepay any Competitive Loan without the prior
consent of the Lender thereof.
(b) If the sum of the aggregate Revolving Exposures and the
aggregate principal amount of the outstanding Competitive Loans shall at any
time exceed the aggregate Commitments, then (i) on the last day of any Interest
Period for any Eurocurrency Revolving Borrowing and (ii) on any other date in
the event any ABR Revolving Borrowing shall be outstanding, the Borrower shall
prepay Revolving Loans in an amount equal to the lesser of (A) the amount
necessary to eliminate such excess (after giving effect to any other prepayment
of Loans on such day) and (B) the amount of the applicable Borrowings referred
to in clause (i) or (ii), as applicable. If, on any date, the sum of the
aggregate Revolving Exposures and the aggregate principal amount of the
outstanding Competitive Loans shall exceed 105% of the aggregate Commitments,
then the Borrower shall, not later than the next Business Day, prepay one or
more Borrowings in an aggregate principal amount sufficient to eliminate such
excess.
(c) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall
43
specify such selection in the notice of such prepayment pursuant to paragraph
(d) of this Section.
(d) The Borrower shall notify the Applicable Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) or by telecopy of any prepayment hereunder (i) in the
case of a Eurocurrency Borrowing denominated in US Dollars, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment,
(ii) in the case of a Borrowing denominated in a Alternative Currency, not later
than 11:00 a.m., London time, four Business Days before the date of prepayment,
(iii) in the case of prepayment of an ABR Revolving Borrowing, not later than
11:00 a.m., New York City time, on the date of prepayment or (iv) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of optional prepayment
is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.09, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.09. Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing shall be in an
amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest and
other amounts to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent, in US Dollars, for the account of each Lender, a facility
fee, which shall accrue at the Applicable Rate on the daily amount of the
Commitment of such Lender (whether used or unused) during the period from and
including the date of this Agreement to but excluding the Maturity Date;
provided that, if such Lender continues to have any Revolving Exposure after the
Maturity Date, then such facility fee shall continue to accrue on the daily
amount of such Lender's Revolving Exposure from and including the Maturity Date
to but excluding the date on which such Lender ceases to have any Revolving
Exposure. Accrued facility fees shall be payable in arrears on the last day of
March, June, September and December of each year, on any date prior to the
Maturity Date on which all the Commitments shall have terminated and on the
Maturity Date, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the Maturity Date shall be
payable on demand. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurocurrency Revolving
Loans on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC
44
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a one-time fronting fee, of 0.125% of the LC Exposure with respect
to the initial amount of any Letter of Credit issued hereunder (other than the
Existing Letters of Credit pursuant to third sentence of Section 2.06(a)), as
well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued or becoming
payable in respect of Letters of Credit issued through and including the last
day of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Agents, for their own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Agents.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Eurocurrency Revolving Loan, at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurocurrency Competitive Loan, at the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such
45
Loan as provided in the preceding paragraphs of this Section or (ii) in the case
of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans
and Swingline Loans, upon the termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan or a Swingline Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurocurrency Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such conversion. All interest shall be
payable in the currency in which the applicable Loan is denominated.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in Sterling
and (ii) interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or, except in the case of Borrowings denominated in
Sterling, 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(i) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(ii) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurocurrency Competitive Loan, the Lender
that is required to make such Loan) that the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining the Loans (or Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing in such
currency shall be ineffective, and
46
unless repaid such Borrowing shall be converted to or continued on the last day
of the Interest Period applicable thereto (A) if such Borrowing is denominated
in US Dollars, as an ABR Borrowing, or (B) if such Borrowing is denominated in
any Alternative Currency, as a Borrowing bearing interest at such rate as
Administrative Agent shall determine adequately and fairly reflects the cost to
the affected Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period plus the Applicable
Rate, (ii) if any Borrowing Request requests a Eurocurrency Revolving Borrowing
in such currency, such Borrowing shall be made (A) if such Borrowing is
denominated in US Dollars, as an ABR Borrowing, or (B) if such Borrowing is
denominated in any Alternative Currency, as a Borrowing bearing interest at such
rate as the Administrative Agent shall determine adequately and fairly reflects
the cost to the affected Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest Period plus the
Applicable Rate and (iii) any request by the Borrower for a Eurocurrency
Competitive Borrowing shall be ineffective; provided that (A) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurocurrency Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowing, then the other Type of
Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or any
applicable interbank market any other condition affecting this
Agreement or Eurocurrency Loans or Fixed Rate Loans made by such Lender
or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters
47
of Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, 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 Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan or Fixed Rate Loan on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(d) and is revoked in
accordance therewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurocurrency Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event, including, to the
extent that any of the foregoing
48
Loans are denominated in any Alternative Currency, the costs and expenses of
such Lender attributable to the premature unwinding of any hedging agreement
entered into by such Lender in respect to the foreign currency exposure
attributable to such Loan. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at
the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the applicable currency of a
comparable amount and period from other banks in the eurocurrency market. A
certificate of any Lender setting forth in reasonable detail any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) 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 deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Applicable Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify each Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by such Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Borrower hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate setting forth the
amount of such payment or liability delivered to the Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.
49
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any 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 located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement 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, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment or, if no such time is expressly
required, prior to 12:00 noon, Local Time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Applicable Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Applicable
Agent to the applicable account specified by it for the account of the Lenders
or, in any such case, to such other account as the Applicable Agent shall from
time to time specify in a notice delivered to the Borrower, except payments to
be made directly to the Issuing Bank or Swingline Lender as expressly provided
herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the Persons specified therein. The
Applicable Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder of principal or interest in respect of any Loan or LC Disbursement
shall, except as otherwise expressly provided herein, be made in the currency of
such Loan or LC Disbursement; all other payments hereunder and under each other
Loan Document shall be made in US Dollars. Any payment required to be made by
either Agent hereunder shall be deemed to have been made by the time required if
such Agent shall, at or before such time, have taken the necessary steps to make
such payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by such Agent to make such payment.
50
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal of the Loans and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or funded participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary 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
Revolving Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
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 the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Applicable Agent for the account of the Lenders or the Issuing Bank hereunder
that the Borrower will not make such payment, the Applicable 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 Issuing
Bank, 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 Issuing Bank, as the
case may be, severally agrees to repay to the Applicable Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank 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 Applicable Agent, at (i) the
greater of the
51
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation (in the case
of an amount denominated in US Dollars) and (ii) the rate reasonably determined
by the London Agent to be the cost to it of funding such amount (in the case of
an amount denominated in any Alternative Currency).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by either
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, 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 2.17, or if the
Borrower is required to pay any additional interest to any Lender pursuant to
Section 2.20, 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 2.15, 2.17 or
2.20, as the case may be, in the future and (ii) 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) If (i) any Lender requests compensation under Section
2.15, (ii) 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
2.17, (iii) the Borrower is required to pay any additional interest to any
Lender pursuant to Section 2.20 or (iv) any Lender defaults in its obligation to
fund Loans hereunder, 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 Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (x)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Issuing Bank), which consent,
in each case, shall not unreasonably be withheld, (y) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Competitive Loans) and funded participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal, funded participations and accrued interest and fees) or the Borrower
(in the case of all other amounts) and (z) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
52
required to be made pursuant to Section 2.17 or additional interest required
pursuant to Section 2.20, such assignment will result in a material reduction in
such compensation or payments. A Lender shall not be required to make any such
assignment and 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.
SECTION 2.20. Additional Reserve Costs. (a) If and so long as
any Lender is required by the Bank of England or any other monetary or other
authority of the United Kingdom to make special deposits, to maintain reserve
asset ratios or to pay fees, in each case in respect of such Lender's
Eurocurrency Loans, such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on each of such Loans,
additional interest on such Loan at a rate per annum equal to the Mandatory
Costs Rate calculated in accordance with the formula and in the manner set forth
in Exhibit D hereto.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or
other authority (including any such requirement imposed by the European Central
Bank or the European System of Central Banks, but excluding requirements
reflected in the Statutory Reserve Rate or the Mandatory Costs Rate) in respect
of any of such Lender's Eurocurrency Loans, such Lender may require the Borrower
to pay, contemporaneously with each payment of interest on each of such Lender's
Eurocurrency Loans subject to such requirements, additional interest on such
Loan at a rate per annum specified by such Lender to be the cost to such Lender
of complying with such requirements in relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender, which determination shall
be conclusive absent manifest error, and notified to the Borrower (with a copy
to the Agents) at least five Business Days before each date on which interest is
payable for the relevant Loan, and such additional interest so notified to the
Borrower by such Lender shall be payable to the London Agent for the account of
such Lender on each date on which interest is payable for such Loan.
(d) A reference to a Lender in this Section 2.20 includes any
domestic or foreign branch or Affiliate of such Lender making a Loan as
contemplated by Section 2.02(b).
SECTION 2.21. Redenomination of Certain Alternative
Currencies. (a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
53
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the London Agent (in consultation with the
Borrower) may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Existence, Qualification and Power; Compliance
with Laws. Each Loan Party and each other Subsidiary (a) is duly incorporated or
organized, 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, regulations and orders of any Governmental
Authority applicable to it or its properties; 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 result in a Material Adverse Effect.
SECTION 3.02. Authorization; No Contravention. The execution,
delivery and performance by each Loan Party of each Loan Document to which it is
a 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 charter, by-laws or other organizational 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 agreement,
instrument or undertaking 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,
rule or regulation. Each Loan Party and each other Subsidiary is in compliance
with all agreements, instruments and undertakings referred to in clause (b)(i),
except to the extent that failure to be in compliance could not reasonably be
expected to result in a Material Adverse Effect.
54
SECTION 3.03. 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
Subsidiary Loan Party, 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
which are in full force and effect or such registrations, consents and approvals
referred to in Section 3.01 hereof.
SECTION 3.04. 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 a party thereto. This
Agreement constitutes, and each other Loan Document when so executed and
delivered will constitute, a legal, valid and binding obligation of each Loan
Party that is party thereto, enforceable against each such Loan Party 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.
SECTION 3.05. 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 consolidated
financial condition of the Borrower and the Subsidiaries as of the date thereof
and their consolidated 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
the Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower
and the Subsidiaries as at April 30, 2005, and the related unaudited
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 the 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 resulted, or could reasonably be expected to result, in a Material Adverse
Effect. The Borrower and each Subsidiary Loan Party is Solvent.
SECTION 3.06. Litigation. (a) There are no actions, suits or
proceedings (whether or not purportedly on behalf of the Borrower or any
Subsidiary) pending or, to
55
the knowledge of the Borrower, threatened against or affecting the Borrower or
any Subsidiary at law or in equity or before or by any Governmental Authority,
which involve any of the Transactions or which could reasonably be expected to
result in a Material Adverse Effect
(b) Neither the Borrower nor any Subsidiary 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.
SECTION 3.07. 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 result in 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 result in a Material Adverse
Effect.
SECTION 3.08. Ownership of Property; Liens. The Borrower and
each Subsidiary has good title to its respective properties and assets, and all
such properties and assets are free and clear of all Liens other than Permitted
Liens.
SECTION 3.09. Environmental Compliance. Except as disclosed in
Schedule 3.09 hereto, the Borrower and each Subsidiary are in compliance 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, except to the
extent any such noncompliance or violation could not reasonably be expected to
result in a Material Adverse Effect. 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, except to the extent any such violation could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.10. Insurance. The properties of the Borrower and
the Subsidiaries are insured with financially sound and reputable insurance
companies 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.
SECTION 3.11. Taxes. The Borrower and the 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 result in a Material Adverse Effect
56
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 have been provided on the
books of the Borrower and the Subsidiaries. There is no proposed tax assessment
against the Borrower or any Subsidiary that would, if made, result in a Material
Adverse Effect. Except as set forth in Schedule 3.11 hereto, neither any Loan
Party nor any Subsidiary is a party to any tax sharing agreement.
SECTION 3.12. ERISA Compliance. No material liability under
ERISA or the Code (other than for PBGC premiums due but not delinquent), has
been imposed, or could reasonably be expected to be imposed, upon the Borrower
or any ERISA Affiliate. No ERISA Event has occurred, or could reasonably be
expected to occur, that, when taken together with any other ERISA Events that
have occurred, could reasonably be expected to result in a material liability to
the Borrower or any ERISA Affiliate. 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 excess
of 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), as of the date of the most recent financial statements
reflecting such amounts, over the fair market value of the assets of such Plan,
if any, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.13. Subsidiaries; Equity Interests. Attached hereto
as Schedule 3.13 is a correct and complete list of each of the Subsidiaries and
Affiliates (other than directors and officers of the Borrower) as of the Closing
Date showing as to each (a) Subsidiary, its name, the jurisdiction of its
incorporation, its shareholders or other owners of interests in such Subsidiary
and the number of outstanding shares or other ownership interests owned by each
shareholder or other owner of interests 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.
SECTION 3.14. Margin Regulations; Investment Company Act;
Public Utility Holding Company Act. (a) Neither the Borrower nor any of the
Subsidiaries is engaged or will 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 Board), or extending credit for the
purpose of purchasing or carrying margin stock. Following the application of the
proceeds of each Borrowing and each issuance of a Letter of Credit, not more
than 25% of the value of the assets (either of the Borrower only or of the
Borrower and the Subsidiaries on a consolidated basis) subject to any provision
of this Agreement under which the sale, pledge or disposition of assets is
restricted (within the meaning of Regulation U) 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
57
1935, or (ii) is or is required to be registered as an "investment company"
under the Investment Company Act of 1940.
SECTION 3.15. Disclosure. None of this Agreement, any other
Loan Document or any other document, certificate or written statement furnished
to the Administrative Agent, the Issuing Bank or any Lender by or on behalf of
the Borrower or any of the 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.
SECTION 3.16. Compliance With Laws. The Borrower and each
Subsidiary is in compliance with all laws, rules, regulations, orders and
decrees which are applicable to the Borrower or such Subsidiary, or to any of
their respective properties, the failure to comply with which could reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.17. Permits and Licenses, Etc. The Borrower and each
Subsidiary has all permits, licenses, certifications, authorizations and
approvals required for it lawfully to own and operate its respective business
except to the extent the failure to have any such permit, license,
certification, authorization or approval could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.18. Labor Disputes and Acts of God. Neither the
business nor the properties of the Borrower or any Subsidiary are affected by
any accident, loss, theft, destruction, strike, lockout or other labor dispute,
embargo, condemnation, act of God or of the public enemy or other casualty
(whether or not covered by insurance), which could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.19. Specially Designated Nationals or Blocked
Persons List. None of the Borrower, the Subsidiaries or any Affiliates of the
Borrower are named on the United States Department of the Treasury's Specially
Designated Nationals or Blocked Persons list.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
58
(b) The Guarantee Requirement shall be satisfied.
(c) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Carter Ledyard & Milburn LLP, counsel
for the Loan Parties, substantially in the form of Exhibit B. The
Borrower hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 and paragraphs (b) and (f) of this Section.
(f) There shall not have occurred since July 31, 2004, any
event, condition or circumstance that has resulted, or could reasonably
be expected to result, in a Material Adverse Effect.
(g) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of
counsel) required to be reimbursed or paid by the Borrower hereunder or
under any other Loan Document.
(h) All outstanding 7.83% Senior Notes shall have been repaid,
repurchased or redeemed in full.
(i) The Existing Credit Agreement and the commitments
thereunder shall have been terminated, the loans and other amounts
outstanding or payable thereunder shall have been paid in full and all
letters of credit outstanding thereunder shall have expired or been
terminated.
(j) The Lenders shall have received, to the extent requested,
all documentation and other information reasonably requested by the
Lenders or the Administration Agent under applicable "know your
customer" and anti-money laundering rules and regulations, including
the USA Patriot Act.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 3:00 p.m., New York City
59
time, on July 28, 2005 (and, in the event such conditions are not so satisfied
or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
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 5.01, 5.02, and 5.03) cause
each Subsidiary to:
SECTION 5.01. Financial Statements. Deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Lenders:
(a) as soon as available, but in any event within 90 days
after the end of each Fiscal Year of the Borrower or at such earlier
time as the SEC may require the Borrower to deliver its Form 10-K
(commencing with the Fiscal Year ended July 31, 2005), a consolidated
balance sheet of the Borrower and the 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
consistently applied throughout the periods covered thereby, except as
otherwise expressly noted therein, 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 financial statement audit; provided
that the
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requirements of this paragraph shall be deemed satisfied by delivery
within the time period specified above of (i) a copy of 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 (ii) a notice
setting forth a written reference to a website that contains such Form
10-K (together with the Borrower's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act); and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of the
Borrower or at such earlier time as the SEC may require the Borrower to
deliver its Form 10-Q (commencing with the fiscal quarter ended October
31, 2005), (i) a consolidated balance sheet of the Borrower and the
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 consistently applied throughout the
periods covered thereby, except as otherwise expressly noted therein,
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 paragraph
shall be deemed satisfied by delivery within the time period specified
above of (i) 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 (ii) 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
5.02(c), 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.
SECTION 5.02. 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 5.01(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;
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(b) concurrently with the delivery of the financial statements
referred to in Section 5.01(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;
(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 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 5.01 or any other clause
of this Section;
(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 5.01(a)
or (b) or paragraph (c) of this Section (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 www.pall.com; 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 has
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that 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 5.02(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.
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The Borrower hereby acknowledges that (a) the Administrative
Agent may make available to the Lenders and the Issuing Bank 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 Issuing Bank 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".
SECTION 5.03. 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, any agreement, instrument
or other undertaking to which the Borrower or any Subsidiary is a party
or by which any of the Borrower or the Subsidiaries or any of their
respective properties are bound; (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
rating by S&P or Moody's of the Index Debt.
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
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to therein and stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to paragraph (a) of this Section
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
SECTION 5.04. 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 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 result in 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 result in a Material Adverse Effect; provided,
however, that neither the Borrower nor any Subsidiary 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 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.
SECTION 5.05. 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 6.04 or 6.05; (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 result in 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 result in a Material
Adverse Effect.
SECTION 5.06. 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
64
businesses; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
SECTION 5.07. Maintenance of Insurance. Maintain with
financially sound and reputable insurance companies that are 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.
SECTION 5.08. 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
result in a Material Adverse Effect, including, without limitation, the rules
and regulations of the Board.
SECTION 5.09. 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 Subsidiary and matters involving the assets and business of
the Borrower and each Subsidiary.
SECTION 5.10. Inspection Rights. At any time during normal
business hours, upon reasonable advance notice and subject to compliance by the
Administrative Agent with the Borrower's normal confidentiality requirements,
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 the Administrative Agent or such Lender reasonably deems
necessary or desirable (including the financial records of the Borrower and the
Subsidiaries) and to visit the properties of the Borrower or any of the
Subsidiaries and to discuss the affairs, finances and accounts of the Borrower
or any of the Subsidiaries with any of their respective executive officers or,
in the presence of a Responsible Officer or a person designated in writing by a
Responsible Officer, the Borrower's independent accountants.
SECTION 5.11. Use of Proceeds. Use the proceeds of the Loans
and the Letters of Credit for the purposes set forth in the recitals hereto, and
not in contravention of any law or of any Loan Document.
SECTION 5.12. Guarantee Requirement. Notify the Administrative
Agent at the time that any Person becomes a Domestic Subsidiary, and promptly
thereafter (and in any event within 30 days), (a) cause the Guarantee
Requirement to be satisfied with respect to such Person and (b) deliver to the
Administrative Agent documents comparable to those referred to in Section
4.01(c) and (d) with respect to such Person and the Loan Documents to which it
shall be a party.
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SECTION 5.13. 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.
SECTION 5.14. Borrower Ratings. Arrange for an annual
reassessment and review of the ratings by S&P and Moody's of the Index Debt and
maintain ratings by S&P and Moody's of the Index Debt at all times.
ARTICLE VI
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:
SECTION 6.01. 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 (collectively, "Permitted Liens"):
(a) Liens created under any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
6.01;
(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;
66
(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
could not result in a Material Adverse Effect;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 7.01(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;
(i) Liens securing leases (other than Synthetic Lease
Obligations); and
(j) Liens not expressly permitted by clauses (a) through (i)
above securing or deemed to exist in connection with Priority
Indebtedness permitted under Section 6.03; provided that such Liens
shall not secure any other obligations (other than interest, fee,
expense reimbursement, indemnity and similar obligations associated
with such permitted Priority Indebtedness).
SECTION 6.02. Investments. Make any Investments, except:
(a) Investments held by the Borrower or any 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) Investments constituting Permitted Acquisitions;
(e) Investments (including by the purchase of Equity
Interests) (other than Investments listed on Schedule 6.02 hereto, such
Investments being permitted by clause (g) below) by the Borrower in any
Person which is not a Subsidiary; 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
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Investments made pursuant to this paragraph, calculated at the time of
the incurrence of each such Investment, is in an amount not in excess
of 10% of the Consolidated Tangible Assets of the Borrower and the
Subsidiaries;
(f) 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
(g) Investments not otherwise specified in clauses (a) through
(f) hereof that are described on Schedule 6.02 hereto.
SECTION 6.03. Priority Indebtedness. Permit the aggregate
Priority Indebtedness of the Borrower and the Subsidiaries at any time to exceed
15% of Consolidated Net Tangible Assets as of the most recent fiscal quarter end
of the Borrower.
SECTION 6.04. 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 Subsidiary Loan Party is merging with another Domestic Subsidiary,
the Subsidiary Loan Party shall be the continuing or surviving Person;
(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 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 Subsidiary Loan Party, then the transferee must either
be the Borrower or a Subsidiary Loan Party that is party to the
Guaranty Agreement;
(d) the Borrower and any Subsidiary may make Investments
permitted under Section 6.02 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
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the other Loan Documents and shall execute such documents and
agreements as may be reasonably required by the Administrative Agent.
SECTION 6.05. 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 the Borrower or any Subsidiary
to the Borrower or to a Subsidiary; provided that if the transferor of
such property is a Loan Party, the transferee thereof must be a Loan
Party that, if not the Borrower, is party to the Guaranty Agreement;
(d) Dispositions of all or substantially all the assets of the
Borrower or a Subsidiary permitted by Section 6.04;
(e) Dispositions of notes, accounts receivable or other
obligations owing to the Borrower or any Subsidiary of the Borrower,
with or without recourse, including for collections in the ordinary
course of business;
(f) the making of Investments permitted by Section 6.02 and
the making of Restricted Payments permitted by Section 6.06; and
(g) Dispositions by the Borrower and the Subsidiaries not
otherwise permitted under this Section; provided that (i) at the time
of each 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 (g) in any Fiscal Year shall not
exceed the amount expressed in dollars which is equal to 15% of the
aggregate book value of the assets of the Borrower and the Subsidiaries
on a consolidated basis calculated at the time such Disposition is
made;
provided, however, that any Disposition pursuant to clauses (a) through (f)
shall be for fair market value.
SECTION 6.06. 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").
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SECTION 6.07. 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 the Subsidiaries on the date hereof
and (ii) from any business substantially related or incidental to those lines of
business conducted by the Borrower and the Subsidiaries on the date hereof.
SECTION 6.08. 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 the 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 Subsidiary Loan Party that is party to the Guaranty Agreement
or between and among any Subsidiary Loan Parties that are party to the Guaranty
Agreement, (ii) Investments in Subsidiaries permitted under Section 6.02 and
(iii) the tax sharing agreements set forth on Schedule 3.11 hereto.
SECTION 6.09. Burdensome Agreements. Enter into any agreement,
instrument or undertaking (other than this Agreement or any other Loan Document)
that limits the ability (a) of any Subsidiary to make Restricted Payments to the
Borrower or any Subsidiary Loan Party or to otherwise transfer property to the
Borrower or any Subsidiary Loan Party, (b) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (c) 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 (c) shall not prohibit any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted hereunder solely to
the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness.
SECTION 6.10. Use of Proceeds. Use the proceeds of any Loan or
any Letter of Credit, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the Board) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
SECTION 6.11. Financial Covenants. (a) 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) Permit the Consolidated Leverage Ratio at any time to be
greater than 3.0 to 1.0.
SECTION 6.12. 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
70
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.
SECTION 6.13. Certain Agreements, Amendment and Waivers. Enter
into, amend or waive any provision of any agreement, instrument or undertaking
evidencing or related to Indebtedness of the Loan Party, if such agreement,
instrument or undertaking (after giving effect to any such amendment or waiver,
as applicable) would contain any financial covenant that would be more
restrictive than any financial covenant contained in this Agreement.
SECTION 6.14. Inactive Domestic Subsidiaries. No more than
$1,000,000 of assets will be held by Inactive Domestic Subsidiaries in the
aggregate.
ARTICLE VII
Events of Default
SECTION 7.01. 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 LC Disbursement, or (ii) within five days after the
same becomes due, any interest on any Loan or on any LC Disbursement,
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
5.01, 5.02, 5.03, 5.05, 5.10, 5.11 or 5.12 or Article VI; 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
(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 in any material respect 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
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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 (however 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 (however defined in such Swap Contract) or (B) any termination
event (however defined in such Swap Contract) under such Swap Contract
as to which the Borrower or any Subsidiary is an affected party
(however defined in such Swap Contract) 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
Subsidiary 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 Loan Party 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 60
days after its issue or levy; or
(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 result, or could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
72
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 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
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.
SECTION 7.02. 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 Issuing Bank to make Letter of 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 LC
Exposure (in an amount equal to the then Outstanding Amount thereof);
and
(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 Issuing Bank to make
73
Letter of 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 LC Exposure as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.
SECTION 7.03. 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 VIII) 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 Issuing Bank (including fees, charges
and disbursements of counsel to the respective Lenders and the Issuing Bank
(including fees and time charges for attorneys who may be employees of any
Lender or the Issuing Bank) and other amounts payable under Article II), 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, LC Disbursements and
other Obligations, ratably among the Lenders and the Issuing Bank 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 LC Disbursements, ratably among
the Lenders and the Issuing Bank in proportion to the respective amounts
described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the
Issuing Bank, to Cash Collateralize that portion of LC Exposure 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 2.06(j), 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 VIII
The Agents
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Agents as its agents and authorizes the Agents to take such actions
on its behalf and to exercise such powers as are delegated to the Agents by the
terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
Any Person serving as an 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 an Agent, and such Person and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not an Agent hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agents shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agents are required to
exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Agents shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of the Subsidiaries that is communicated to or obtained by them or any of
their Affiliates in any capacity. The Agents shall not be liable for any action
taken or not taken by them with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) or in the absence of their
own gross negligence or wilful misconduct. Each Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to such Agent by the Borrower or a Lender, and the Agents 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 any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any
75
liability for relying thereon. Each Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by it. Each
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through its respective Related Parties. The exculpatory
provisions of the preceding paragraphs and the provisions of Section 9.03 shall
apply to any such sub-agent and to the Related Parties of each 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 Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, each Agent may resign at any time by notifying
the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders (in the case of a resignation by the Administrative Agent) or
the Administrative Agent (in the case of a resignation by the London Agent)
shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent's resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring 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 it was acting as Agent.
Each Lender acknowledges that it has, independently and
without reliance upon either Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon either Agent
or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
The parties agree that none of the Co-Lead Arrangers and Joint
Bookrunners or the Syndication Agent referred to on the cover page shall have
any powers, duties or responsibilities under this Agreement or any other Loan
Document,
76
except in its capacity, as applicable, as an Agent, a Lender, the Issuing Bank
or the Swingline Lender hereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (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 telecopy, as follows:
(i) if to the Borrower, to it at Pall Corporation, 2200
Northern Blvd., East Hills, NY 11548, Attention of Legal Department
(Telecopy No. (516) 484-3529);
if to the Administrative Agent, the Issuing Bank or the
Swingline Lender, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002,
Attention of Maria Giannavola (Telecopy No. (713) 750-2358), with a
copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, NY 10017,
Attention of Louise Duchi (Telecopy No. (631) 755-5184);
(ii) if to the London Agent, to J. P. Morgan Europe Limited,
125 London Wall, London EC2Y 5AJ, Attention of Agency Department
(Telecopy No. 44-207-777-2360), with a copy to the Administrative Agent
as provided under clause (ii) above; and
(iii) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender.
Each 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.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
either Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or
77
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether either Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) None of this Agreement, any other Loan Document or any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and each Loan Party that is a party thereto, in
each case with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the maturity of any Loan, or the required date of reimbursement of any
LC Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the percentage set forth in the definition of "Required Lenders"
or any other provision of any Loan Document specifying the number or percentage
of Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender or (vi) release all or substantially all the Subsidiary Loan Parties
from their obligations under the Guaranty Agreement (except as expressly
provided in Section 9.15), or limit their liability in respect of such
obligations, without the written consent of each Lender; provided further that
no such agreement shall amend, modify or otherwise affect the rights or duties
of either Agent, the Issuing Bank or the Swingline Lender without the prior
written consent of such Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation, execution, delivery
and administration of the Loan Documents or any
78
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank 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 Agents, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Agents, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or 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.
(b) The Borrower shall indemnify the Agents, the Issuing Bank
and each Lender, 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, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the syndication of the credit facilities
provided for herein, the preparation, execution, delivery or administration of
the Loan Documents or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank 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
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the 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 and regardless of whether any Indemnitee is a
party thereto and regardless of whether such matter is initiated by a third
party or by the Borrower or any Affiliate thereof; 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 wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to either Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to such Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent, the Issuing Bank or the Swingline Lender in its capacity as
such. For purposes hereof, a Lender's "pro rata share" shall be determined
79
based upon its share of the sum of the total Revolving Exposures and unused
Commitments at the time (or, if there shall be no Revolving Exposures or unused
Commitments, based upon its share of the unused Commitments most recently in
effect at the time).
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with or
as a result of this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or any Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) 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 (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except that
(i) no Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder or under any other Loan Document without the prior written
consent of each Lender (and any attempted assignment or transfer by a Loan Party
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section. 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 (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and is
continuing, any other assignee; and
(B) the Administrative Agent; and
(C) the Issuing Bank.
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(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning
Lender's Commitment or Competitive Loans, the amount of the
Commitment 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) shall not be less than US$5,000,000
unless each of the Borrower and the Administrative Agent
otherwise consents; provided that no such consent of the
Borrower shall be required if an Event of Default has occurred
and is continuing;
(B) 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; provided
that this clause shall not apply to rights in respect of
outstanding Competitive Loans;
(C) 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
US$3,500; and
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved
Fund" has the following meaning:
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto 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 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a
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participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices 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
Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any consent to
such assignment required by paragraph (b) of this Section, the
Administrative Agent shall record the information contained in such
Assignment and Assumption in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of, or notice to,
the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents. 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 the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a
82
Lender; provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 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 2.17 unless such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e)
as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties herein, in the other
Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Agents or the Issuing Bank 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
83
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of any Loan Document
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions of such Loan Document; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to and shall not limit other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court 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 any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
either Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
84
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement 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
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
hereto or thereto to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (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, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, 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
85
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 (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to either Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to either Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
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.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due
86
to the Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 9.14 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 9.15. Releases of Guarantees. (a) In the event of a
disposition of all the Equity Interests in a Subsidiary Loan Party to a Person
other than the Borrower or an Affiliate of the Borrower in a transaction not
prohibited by any covenant contained in this Agreement, the Administrative Agent
is hereby directed and authorized to take such action and to execute such
documents as the Borrower may reasonably request, at the Borrower's sole
expense, to evidence or effect the release of the Guarantee by such Subsidiary
Loan Party under the Guaranty Agreement.
(b) Without limiting the provisions of Section 9.05, the
Borrower shall reimburse the Administrative Agent for all costs and expenses,
including attorney's fees and disbursements, incurred by it in connection with
any action contemplated by this Section 9.15.
SECTION 9.16. USA Patriot Act. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each of the Loan Parties that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Loan Parties, which information includes the name and address of such
Loan Parties and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Parties in accordance
with the Patriot Act.
SECTION 9.17. Waiver Under Existing Credit Agreement. Each of
the Lenders party hereto that is a "Lender" under the Existing Credit Agreement
hereby waives advance notice of the termination of the commitments and
prepayment of the loans under the Existing Credit Agreement; provided that
notice thereof is provided on the Effective Date.
[The remainder of this page has been left blank
intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
PALL CORPORATION,
by
------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Lender, Swingline Lender and Issuing
Bank and as Administrative Agent,
by
------------------------
Name:
Title:
J. P. MORGAN EUROPE LIMITED,
as London Agent,
by
------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT,
AMONG PALL CORPORATION, THE
LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT AND J. P. MORGAN EUROPE
LIMITED, AS LONDON AGENT
Name of Institution:
----------------------------------------
by
------------------------
Name:
Title:
SCHEDULE 2.01
COMMITMENTS
Lender Commitment
- ------ ----------
JPMorgan Chase Bank, N.A................................... $ 37,000,000.00
Bank of America, N.A....................................... 37,000,000.00
North Fork Bank............................................ 32,000,000.00
UBS Loan Finance LLC....................................... 32,000,000.00
Wachovia Bank, N.A......................................... 32,000,000.00
Sumitomo Mitsui Banking Corporation........................ 25,000,000.00
UFJ Bank Limited........................................... 25,000,000.00
KBC Bank................................................... 25,000,000.00
The Norinchukin Bank....................................... 25,000,000.00
Banca Nazionale del Lavoro SpA, New York Branch............ 20,000,000.00
Comerica Bank.............................................. 20,000,000.00
HSBC Bank USA, National Association........................ 20,000,000.00
The Bank of New York....................................... 20,000,000.00
-------------
TOTAL $350,000,000.00
===============
SCHEDULE 3.06
EXISTING LETTERS OF CREDIT
SCHEDULE 3.09
ENVIRONMENTAL COMPLIANCE
SCHEDULE 3.11
TAX-SHARING AGREEMENTS
SCHEDULE 3.13
SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.01
EXISTING LIENS
SCHEDULE 6.02
OTHER INVESTMENTS
SCHEDULE 6.14
INACTIVE DOMESTIC SUBSIDIARIES
Exhibit A
FORM OF ASSIGNMENT AND ASSUMPTION
[FORM OF]
ASSIGNMENT AND ASSUMPTION
Reference is made to the Five Year Credit Agreement dated as
of July 29, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Pall Corporation, the Lenders named
therein, JPMorgan Chase Bank, N.A., as Administrative Agent and J. P. Morgan
Europe Limited, as London Agent. Terms defined in the Credit Agreement are used
herein with the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interests")
in the Assignor's rights and obligations under the Credit Agreement and the
other Loan Documents, including, without limitation, the interests set forth
below in the Commitments of the Assignor on the Assignment Date and Loans owing
to the Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit, LC Disbursements and Swingline Loans held
by the Assignor on the Assignment Date, but excluding accrued interest and fees
to and excluding the Assignment Date. The Assignee hereby acknowledges receipt
of a copy of the Credit Agreement. From and after the Assignment Date (a) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interests, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and (b)
the Assignor shall, to the extent of the Assigned Interests, relinquish its
rights and be released from its obligations under the Credit Agreement.
This Assignment and Assumption is being delivered to the
Administrative Agent together with (a) to the extent required, any documentation
required to be delivered by the Assignee pursuant to Section 2.17(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (b) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Assumption shall be governed by and
construed in accordance with the laws of the State of New York.
3
- ---------------------------------------- --------------------------------------------------------------------
Legal Name of Assignor:
- ---------------------------------------- --------------------------------------------------------------------
Legal Name of Assignee:
- ---------------------------------------- --------------------------------------------------------------------
Assignee's Address for Notices:
- ---------------------------------------- --------------------------------------------------------------------
Effective Date of Assignment
("Assignment Date"):
- ---------------------------------------- --------------------------------------------------------------------
Facility Principal Amount Assigned Percentage Assigned of
Facility/Commitment (set
forth, to at least 8 decimals,
as a percentage of the
Facility and the aggregate
Commitments of all Lenders
thereunder)
- ---------------------------------------- ----------------------------------- --------------------------------
REVOLVING COMMITMENT ASSIGNED:
- ---------------------------------------- ----------------------------------- --------------------------------
REVOLVING LOAN ASSIGNED:
- ---------------------------------------- ----------------------------------- --------------------------------
4
This Assignment and Assumption may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. 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.
The terms set forth above are hereby agreed to:
[o], as Assignor
by
---------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment(1):
PALL CORPORATION, JPMorgan Chase Bank, N.A., as
Administrative Agent,
by by
--------------------- ---------------------
Name: Name:
Title: Title:
- ---------------------------
(1) Consents to be included to the extent required by Section 9.04(b) of
the Credit Agreement.
A-1
Form of Assignment and Assumption
2
Name of Institution:
[o], as Assignee
by
---------------------------------
Name:
Title:
by
---------------------------------
Name:
Title:
EXHIBIT C
FORM OF BORROWER'S COUNSEL'S OPINION
July 27, 2005
JPMorgan Chase Bank, N.A.
as Administrative Agent and a Lender
under the Credit Agreement Identified Below, and
Each of the Other Lenders Party to the Credit Agreement Identified Below
c/o JPMorgan Chase Bank, N.A.
Loan and Agency Services
1111 Fannin, 10th Floor
Houston, Texas 77002
Attention: Maria Giannavola
Re: Pall Corporation
Revolving Credit Facility
Ladies and Gentlemen:
We have acted as counsel to (1) Pall Corporation, a New York
corporation (the "Company"), (2) the "Group I Guarantors," consisting
collectively of Pall Aeropower Corporation, a Delaware corporation, Medsep
Corporation, a Delaware corporation, Pall International Corporation, a Delaware
corporation, Pall-PASS, US Inc., a Delaware corporation, Pall Puerto Rico, Inc.,
a Delaware corporation, Pall Biomedical, Inc., a Delaware corporation, Pall
Filtration and Separations Group Inc., a Delaware corporation, Memtec Finance,
Inc., a Delaware corporation, Pall Acquisition LLC, a Delaware limited liability
company, and Pall Industrial Membranes, LLC, a Delaware limited liability
company, and (3) the "Group II Guarantors," consisting collectively of Russell
Associates Inc., a Maryland corporation, and Gelman Sciences, Inc., a Michigan
corporation, in connection with the Five-Year Credit Agreement dated as of the
date of this opinion among the Company, the Lenders Party to the said Agreement,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (the "Agreement"). Each of the Group I Guarantors and
the Group II Guarantors is herein sometimes referred to as a "Guarantor," and
the Group I Guarantors and the Group II Guarantors are herein collectively
sometimes referred to as the "Guarantors." Capitalized terms used but not
defined herein shall have the meanings given to them in the Agreement. This
opinion is being delivered to you pursuant to Section 4.01(c) of the Agreement.
4
As a basis for the opinions expressed herein, we have examined:
(a) a counterpart of the Agreement executed by the Company;
(b) a Note executed by the Company in favor of each Lender which has
requested a Note; and
(c) a counterpart of the Guaranty Agreement executed by each Subsidiary
Loan Party.
The documents listed in items (a) through (c) above are hereinafter referred to
collectively as the "Loan Documents."
We have assumed the genuineness of all signatures and the authenticity
of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as copies, the authenticity of the originals of
such copies, and the legal capacity of natural persons. We have also examined
originals, or copies certified to our satisfaction, of such corporate records,
certificates of public officials, certificates of corporate officers of the
Company and each Subsidiary Loan Party, and such other instruments and documents
as we have deemed necessary as a basis for the opinions hereinafter set forth.
As to questions of fact, we have, to the extent that such facts were not
independently established by us, relied upon such certificates.
This opinion relates only to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law and
Limited Liability Company Act of the State of Delaware. We express no opinion as
to the laws of any other jurisdiction. In particular, we express no opinion, and
no opinion should be implied, as to the organization or good standing of the
Group II Guarantors or the authority (corporate or otherwise) of the Group II
Guarantors to authorize, execute and deliver the Guaranty Agreement or perform
its obligations thereunder.
This opinion speaks only as of the date above written, and we hereby
expressly disclaim any duty to update any part of this opinion.
Based upon and subject to the foregoing, we are of the opinion that
1. Each of the Company and the Group I Guarantors (a) is a corporation
or, in the case of each of Pall Acquisition LLC and Pall Industrial Membranes,
LLC, a limited liability company, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, (b) has all
requisite corporate or limited liability company power and authority, and all
requisite United States federal and New York State governmental licenses,
authorizations, consents and approvals, to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder, and
(c) has all requisite corporate or limited liability company power and authority
to conduct its business substantially as currently conducted by it.
2. The execution, delivery and performance by each of the Company and
the Group I Guarantors of each Loan Document to which it is a party have been
duly
5
authorized by all necessary corporate action or limited liability company
action, as applicable, on the part of the Company and the Group I Guarantors,
and do not and will not
(a) contravene the terms of any organizational documents of the Company
or any Group I Guarantor,
(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 contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other
agreement or instrument listed in Exhibit I to this opinion,
or (ii), to the best of our knowledge, any order, injunction,
writ or decree of any United States federal or New York State
Governmental Authority or arbitral forum to which the Company
or any Group I Guarantor or its property is expressly subject,
or
(c) violate any law, rule or regulation of the United States of
America, the State of New York, or the General Corporation Law
or the Limited Liability Company Act of the State of Delaware.
Management of the Company has advised us that the documents listed in Exhibit I,
other than the documents listed in paragraphs 4 and 5 thereof, are those (a)
which the Company, on the date of this opinion, is required to file as exhibits
to its periodic reports pursuant to Section 13 of the Securities Exchange Act of
1934, and (b) which are described in Item 601(b)(2) of Regulation S-K of the
Securities and Exchange Commission (plan of acquisition, reorganization,
arrangement, liquidation or succession), Item 601(b)(4)(ii) of Regulation S-K
(instruments defining the rights of holders of long-term debt of the Company and
its consolidated subsidiaries) or Item 601(b)(10) of Regulation S-K (material
contracts).
3. No registration with or consent or approval of, or other action by,
any United States federal or New York State Governmental Authority, or to the
extent required under the General Corporation Law and Limited Liability Company
Act of the State of Delaware, any Delaware Governmental Authority, is required
to be obtained by the Company or any Guarantor in connection with (a) its valid
execution and delivery of, and performance of its obligations under, the Loan
Documents to which it is a party, or (b) with respect to the Company, the
borrowings and each other extension of credit under the Agreement.
4. The Agreement has been duly executed and delivered by the Company,
the Guaranty Agreement has been duly executed and delivered by the Group I
Guarantors, and each Note, when delivered under the Agreement by the Company,
will have been duly executed and delivered by the Company. The Agreement and the
Guaranty Agreement constitute, and each Note, when delivered under the Agreement
by the Company, will constitute, legal, valid and binding obligations of the
Company and the Group I Guarantors, as the case may be, enforceable against the
Company and the Group I Guarantors in accordance with their respective terms,
except that (a) enforcement
6
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or 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, and (b) the enforceability of Section 9.09(c) of
the Agreement and Section 4.11 of the Guaranty Agreement is subject to the
discretion of the United States federal or New York State courts with respect to
venue, as provided in 28 U.S.C. Section 1404(a) and New York CPLR Section 510,
respectively.
5. To the best of our knowledge, (a) there are no actions, suits or
proceedings (whether or not purportedly on behalf of the Company or any
Subsidiary of the Company) pending or threatened against the Company or any
Subsidiary at law or in equity or before or by any Governmental Authority in the
United States or any constituent state, territory or possession thereof, which
challenge the validity or enforceability of any Loan Document, or which, if
determined adversely to the Company, would impair the ability of the Company or
any Guarantor to perform its obligations under the Loan Documents to which it is
a party, and (b) neither the Company nor any Subsidiary is in default with
respect to any judgment, writ, injunction, decree, rule or regulation of any
Governmental Authority in the United States or any constituent state, territory
or possession thereof, which default could reasonably be expected to result in a
Material Adverse Effect.
6. To the best of our knowledge, the Company is not engaged,
principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U of the Board), or
extending credit for the purpose of purchasing or carrying margin stock.
7. None of the Company, or any Person Controlling the Company, or any
Subsidiary (a) 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 (b) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
8. The execution, delivery and performance of the Guaranty Agreement by
each of the Group II Guarantors do not and will not 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, (a) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument listed in Exhibit I to this opinion, or (b) to the best of our
knowledge, any order, injunction, writ or decree of any United States federal or
New York State Governmental Authority or arbitral forum to which any Group II
Guarantor or its property is expressly subject, or (c) violate any law, rule or
regulation of the United States of America, the State of New York, or the
General Corporation Law or the Limited Liability Company Act of the State of
Delaware.
9. The Guaranty Agreement, which in Section 4.10 provides that it is
governed by New York law, constitutes a legal, valid and binding obligation of
each Group II Guarantor, enforceable against it in accordance with the terms of
the Guaranty
7
Agreement, except that (a) enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or 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, and (b) the
enforceability of Section 4.11 of the Guaranty Agreement is subject to the
discretion of the United States federal or New York State courts with respect to
venue, as provided in 28 U.S.C. Section 1404(a) and New York CPLR Section 510,
respectively. In rendering this opinion, we have assumed, with your permission,
that (a) each of the Group II Guarantors is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (b) each of the Group II Guarantors has all requisite corporate
power and authority to execute and deliver the Guaranty Agreement and to perform
its obligations thereunder, and (c) the Guaranty Agreement has been duly
authorized, executed and delivered by the Group II Guarantors.
Very truly yours,
8
EXHIBIT I
Documents described in Item 601(b)(2) of Regulation S-K
1. Stock Purchase Agreement dated February 14, 2002, by and between Pall
Corporation (the "Company") and United States Filter Corporation.
2. Amendment dated April 24, 2002, to Stock Purchase Agreement dated
February 14, 2002, by and between the Company and United States Filter
Corporation.
Document described in Item 601(b)(4)(ii) of Regulation S-K
3. Indenture dated as of August 1, 2002, by and among the Company as
Issuer, the Guarantors named therein, as Guarantors, and The Bank of
New York, as Trustee, relating to the Company's 6% Senior Notes due
2012.
Documents described in Item 601(b)(4)(iii) of Regulation S-K
4. Amended and Restated Term Note dated as of June 20, 2005, made by the
Company, payable to Bank of America, N.A., as amended through the date
hereof.
5. Note Purchase Agreement dated as of July 28, 2000, among the Company
and the Purchasers Identified therein, relating to the Company's 7.83%
Senior Notes due 2010.
Documents described in Item 601(b)(10) of Regulation S-K
6. Employment Agreement dated January 21, 2004, between the Company and
Eric Krasnoff, as amended effective July 19, 2005.
7. Employment Agreement dated May 1, 2003, between the Company and Marcus
Wilson.
8. Employment Agreement dated November 15, 2001, between the Company and
Donald B. Stevens.
9. Employment Agreement dated November 15, 2001, between the Company and
Steven Chisolm.
10. Employment Agreement dated May 1, 2003, between the Company and Andrew
Denver.
11. Employment Agreement dated November 15, 2001, between the Company and
John Miller.
12. Employment Agreement dated June 6, 2003, between the Company and
Roberto Perez.
9
13. Employment Agreement dated November 15, 2001, between the Company and
Reed Sarver.
14. Employment Agreement dated April 8, 2002, between the Company and
Gregory Scheessele.
15. Employment Agreement dated August 1, 2004, between the Company and
James R. Western, Jr.
16. Service Agreement dated March 1, 2002, between Pall Europe Limited and
Neil MacDonald.
17. Service Contract dated February 26, 2001, between Pall Deutschland GmbH
Holding and Heinz Ulrich Hensgen.
18. Pall Corporation Supplementary Profit-Sharing Plan, as amended
effective July 19, 2005.
19. Pall Corporation Profit-Sharing Plan as amended and restated as of July
1, 1998.
20. Pall Corporation Profit-Sharing Plan amended pursuant to provisions of
the Economic Growth and Tax Relief Reconciliation Act of 2001.
21. Pall Corporation Supplementary Pension Plan as amended and restated
July 17, 2001.
22. Pall Corporation 2004 Executive Incentive Bonus Plan, as amended
effective July 19, 2005.
23. Pall Corporation 1991 Stock Option Plan, as amended effective April 17,
2002.
24. Pall Corporation 1993 Stock Option Plan, as amended effective April 17,
2002.
25. Pall Corporation 1995 Stock Option Plan, as amended effective April 17,
2002.
26. Pall Corporation 1998 Stock Option Plan, as amended effective April 17,
2002.
27. Pall Corporation 2005 Stock Compensation Plan, as amended effective
July 19, 2005.
28. Form of Notice of Grant of Restricted Stock Units under the Pall 2005
Stock Compensation Plan.
29. Form of Notice of Grant of Annual Award Units under the Pall
Corporation 2005 Stock Compensation Plan.
30. Pall Corporation Stock Option Plan for Non-Employee Directors, as
amended effective November 19, 1998.
10
31. Pall Corporation 2001 Stock Option Plan for Non-Employee Directors, as
amended September 17, 2004.
32. Pall Corporation Management Stock Purchase Plan, as amended effective
July 19, 2005.
33. Pall Corporation Employee Stock Purchase Plan, as amended effective
October 17, 2004.
34. Principal Rules of the Pall Supplementary Pension Scheme.
35. Pall Deutschland GmbH Holding, Concept of an Additional Pension Plan
for Senior Executives.
11
FORM OF GUARANTY AGREEMENT
This GUARANTY AGREEMENT dated as of July 29, 2005 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Guaranty"), is made by each Subsidiary of PALL CORPORATION, a New York
corporation (the "Borrower"), from time to time party hereto, in favor of
JPMORGAN CHASE BANK, N.A., as Administrative Agent (together with its
successor(s) thereto in such capacity, the "Administrative Agent") for the
Lenders under the Five-Year Credit Agreement dated as of July 29, 2005 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Lenders party thereto,
the Administrative Agent and JPMorgan Europe Limited, as London Agent.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreement. The rules of construction set forth in
Section 1.03, 1.04 and 1.05 of the Credit Agreement shall apply to this
Guaranty.
W I T N E S S E T H :
WHEREAS pursuant to the Credit Agreement, the Lenders have
extended Commitments to the Borrower; and
WHEREAS as a condition precedent to the making of a Loan or
the issuance, amendment, renewal or extension of a Letter of Credit under the
Credit Agreement, each Subsidiary Loan Party is required to execute and deliver
this Guaranty.
NOW, THEREFORE, each Subsidiary Loan Party jointly and
severally agrees, for the benefit of each Lender and Agent, as follows:
ARTICLE I
GUARANTY PROVISIONS
SECTION 1.01. Guaranty. Each Subsidiary Loan Party hereby
jointly and severally absolutely, unconditionally and irrevocably:
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations now or hereafter existing,
whether for principal, interest (including interest accruing at the
then applicable rate provided in the Credit Agreement after the
occurrence of any Default set forth in Sections 7.01(f) or (g) of the
Credit Agreement, whether or not a claim for post-filing or
post-petition interest is allowed under applicable law following the
institution of a proceeding under bankruptcy, insolvency or similar
laws), fees, Unreimbursed Amounts, expenses or otherwise (including all
such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b) and
12
506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and
ss.506(b)); and
(b) indemnifies and holds harmless each Lender and Agent for
any and all costs and expenses (including reasonable attorney's fees
and expenses) incurred by such Lender or Agent in enforcing any rights
under this Guaranty.
provided, however, that each Subsidiary Loan Party shall only be liable under
this Guaranty for the maximum amount of such liability that can be hereby
incurred without rendering this Guaranty, as it relates to such Subsidiary Loan
Party, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount. This Guaranty constitutes a
guaranty of payment when due and not of collection, and each Subsidiary Loan
Party specifically agrees that it shall not be necessary or required that any
Lender or Agent exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Loan Party or any other Person before or as a
condition to the obligations of such Subsidiary Loan Party hereunder.
SECTION 1.02. Reinstatement, etc. Each Subsidiary Loan Party
hereby jointly and severally agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment (in
whole or in part) of any of the Obligations is invalidated, declared to be
fraudulent or preferential, set aside, rescinded or must otherwise be restored
by any Lender or Agent, including upon the occurrence of any Default set forth
in Sections 7.01(f) or (g) of the Credit Agreement or otherwise, all as though
such payment had not been made.
SECTION 1.03. Guaranty Absolute, etc. This Guaranty shall in
all respects be a continuing, absolute, unconditional and irrevocable guaranty
of payment, and shall remain in full force and effect until the all the
Commitments have been terminated and all the Obligations have been indefeasibly
paid in full. Each Subsidiary Loan Party jointly and severally guarantees that
the Obligations will be paid strictly in accordance with the terms of each Loan
Document under which they arise, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Lender or Agent with respect thereto. The liability of each
Subsidiary Loan Party under this Guaranty shall be joint and several, absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of any
Loan Document;
(b) the failure of any Lender or Agent:
(i) to assert any claim or demand or to enforce any right
or remedy against any Loan Party or any other Person (including
any other guarantor) under the provisions of any Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including any Subsidiary Loan Party) of any
Obligations;
13
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Obligations, any other
extension, compromise or renewal of any Obligations, or any increase in
the amount of any Obligations;
(d) any reduction, limitation, impairment or termination of
any Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
each Subsidiary Loan Party hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to or departure from, any of the terms
of any Loan Document;
(f) any addition, exchange or release of any Person that is
(or will become) a guarantor (including a Subsidiary Loan Party
hereunder) of the Obligations, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty
held by any Lender or Agent guaranteeing any of the Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Loan
Party, any surety or any guarantor.
SECTION 1.04. Setoff. Each Subsidiary Loan Party hereby
irrevocably authorizes the Administrative Agent and each Lender, without the
requirement that any notice be given to such Subsidiary Loan Party (such notice
being expressly waived by each Subsidiary Loan Party), upon the occurrence and
during the continuance of any Default described in Section 7.01(f) or (g) of the
Credit Agreement or, with the consent of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, to setoff
and appropriate and apply to the payment of the Obligations (whether or not then
due, and whether or not any Lender or Agent has made any demand for payment of
the Obligations), any and all balances, claims, credits, deposits (general or
special, time or demand, provisional or final), accounts or money of such
Subsidiary Loan Party then or thereafter maintained with such Lender or Agent;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 2.18(c) of the Credit Agreement. Each Lender Party
agrees to notify the applicable Subsidiary Loan Party and the Administrative
Agent after any such setoff and application made by such Lender; provided
further, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender or Agent
under this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Lender or Agent
may have.
SECTION 1.05. Waiver, etc. Each Subsidiary Loan Party hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of
14
the Obligations and this Guaranty and any requirement that any Lender or Agent
exhaust any right or take any action against any Loan Party or any other Person
(including any other guarantor) or entity, as the case may be.
SECTION 1.06. Postponement of Subrogation, etc. Each
Subsidiary Loan Party agrees that it will not exercise any rights which it may
acquire by way of rights of subrogation under any Loan Document to which it is a
party, nor shall any Subsidiary Loan Party seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment
made under any Loan Document or otherwise, until following the termination of
all the Commitments and the indefeasible repayment in full of all the
Obligations. Any amount paid to any Subsidiary Loan Party on account of any such
subrogation rights prior to the termination of all the Commitments and the
indefeasible repayment in full of all the Obligations shall be held in trust for
the benefit of the Lenders and Agents and shall immediately be paid and turned
over to the Administrative Agent for the benefit of the Lenders and Agents in
the exact form received by such Subsidiary Loan Party (duly endorsed in favor of
the Administrative Agent, if required), to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with Section 1.07
hereof; provided, however, that if any Subsidiary Loan Party has made payment to
the Lenders and Agents of all of the Obligations and all the Commitments have
been terminated, then at such Subsidiary Loan Party's request, the
Administrative Agent (on behalf of the Lenders and Agents) will, at the expense
of such Subsidiary Loan Party, execute and deliver to such Subsidiary Loan Party
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Subsidiary Loan Party
of an interest in the Obligations resulting from such payment. In furtherance of
the foregoing, at all times prior to the termination of all the Commitments and
the indefeasible repayment in full of all the Obligations, each Subsidiary Loan
Party shall refrain from taking any action or commencing any proceeding against
any Loan Party (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Guaranty to any Lender or Agent.
SECTION 1.07. Payments; Application. Each Subsidiary Loan
Party hereby agrees with each Lender or Agent as follows:
(a) Each Subsidiary Loan Party agrees that any payment of any
Obligation made hereunder shall be made in the currency in which
payment is required to be made on such Obligation under the Credit
Agreement and shall be made to the Administrative Agent, without
setoff, counterclaim or other defense and in accordance with Section
2.10 of the Credit Agreement, free and clear of and without deduction
for any Taxes, each Subsidiary Loan Party hereby agreeing to comply
with and be bound by the provisions of Section 2.10 of the Credit
Agreement in respect of all payments made by it hereunder and the
provisions of which Section are hereby incorporated into and made a
part of this Guaranty by this reference as if set forth herein;
provided, that references to the "Borrower" in such Sections shall be
deemed to be references to each Subsidiary Loan Party, and
15
references to "this Agreement" in such Section shall be deemed to be
references to this Guaranty.
(b) All payments made hereunder shall be applied upon receipt:
(i) first, to the payment of all Obligations owing to the
Administrative Agent, in its capacity as the Administrative Agent
(including the fees and expenses of counsel to the Administrative
Agent);
(ii) second, after payment in full in cash of the amounts
specified in clause (b)(i), to the ratable payment of all interest and
fees owing with respect to the Loans and Letters of Credit and all
costs and expenses owing to the Lenders and Agents pursuant to the
terms of the Credit Agreement, until paid in full in cash;
(iii) third, after payment in full in cash of the amounts
specified in clauses (b)(i) and (b)(ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate
Unreimbursed Amounts then owing and the Cash Collateralization for
contingent liabilities under LC Exposure and Unreimbursed Amounts;
(iv) fourth, after payment in full in cash of the amounts
specified in clauses (b)(i) through (b)(iii), to the ratable payment of
all other Obligations owing to the Lenders and Agent; and
(v) fifth, after payment in full in cash of the amounts
specified in clauses (b)(i) through (b)(iv) and following the
termination of all the Commitments and the indefeasible repayment in
full of all the Obligations, to each applicable Subsidiary Loan Party
or any other Person lawfully entitled to receive such surplus.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuing Bank and the
Agents to enter into the Credit Agreement and make Loans and issue, amend, renew
or extend Letters of Credit thereunder, each Subsidiary Loan Party represents
and warrants to each Lender and Agent as set forth below.
SECTION 2.01. Credit Agreement Representations and Warranties.
The representations and warranties contained in Article III of the Credit
Agreement, insofar as the representations and warranties contained therein are
applicable to any Subsidiary Loan Party and its properties, are true and correct
in all material respects, each such representation and warranty set forth in
such Article (insofar as applicable as aforesaid) and all other terms of the
Credit Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Article.
16
SECTION 2.02. Financial Condition, etc. Each Subsidiary Loan
Party has knowledge of each other Loan Party's financial condition and affairs
and it has adequate means to obtain from each such Loan Party on an ongoing
basis information relating thereto and to such Loan Party's ability to pay and
perform the Obligations, and agrees to assume the responsibility for keeping,
and to keep, so informed for so long as this Guaranty is in effect. Each
Subsidiary Loan Party acknowledges and agrees that the Lenders and the Agents
shall have no obligation to investigate the financial condition or affairs of
any Loan Party for the benefit of such Subsidiary Loan Party nor to advise such
Subsidiary Loan Party of any fact respecting, or any change in, the financial
condition or affairs of any other Loan Party that might become known to any
Lender or Agent at any time, whether or not such Lender or Agent knows or
believes or has reason to know or believe that any such fact or change is
unknown to such Subsidiary Loan Party, or might (or does) materially increase
the risk of such Subsidiary Loan Party as guarantor, or might (or would) affect
the willingness of such Subsidiary Loan Party to continue as a guarantor of the
Obligations.
SECTION 2.03. Best Interests. It is in the best interests of
each Subsidiary Loan Party to execute this Guaranty inasmuch as such Subsidiary
Loan Party will, as a result of being a Subsidiary of the Borrower, derive
substantial direct and indirect benefits from the Loans made from time to time
to the Borrower by the Lenders and the Letters or Credit issued, amended,
renewed or extended by the Issuing Bank pursuant to the Credit Agreement, and
each Subsidiary Loan Party agrees that the Lenders, the Issuing Bank and the
Agents are relying on this representation in agreeing to make Loans and issue,
amend, renew or extend Letters of Credit to the Borrower.
ARTICLE III
COVENANTS, ETC.
Each Subsidiary Loan Party covenants and agrees that, at all
times prior to the termination of all of the Commitments and the indefeasible
repayment in full of all of the Obligations, it will perform, comply with and be
bound by all of the agreements, covenants and obligations contained in the
Credit Agreement (including Articles V and VI and Section 7.01(f) and (g) of the
Credit Agreement) which are applicable to such Subsidiary Loan Party or its
properties, each such agreement, covenant and obligation contained in the Credit
Agreement and all other terms of the Credit Agreement to which reference is made
in this Article, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by this reference as though
specifically set forth in this Article.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Loan Document. This Guaranty is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
17
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article IX thereof.
SECTION 4.02. Binding on Successors. This Guaranty shall
remain in full force and effect until the termination of all the Commitments and
the indefeasible repayment in full of all of the Obligations, shall be jointly
and severally binding upon each Subsidiary Loan Party and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
each Lender and Agent and its successors, transferees and assigns; provided,
however, that no Subsidiary Loan Party may (unless otherwise permitted under the
terms of the Credit Agreement) assign any of its obligations hereunder without
the prior written consent of all Lenders.
SECTION 4.03. Amendments, etc. No amendment to or waiver of
any provision of this Guaranty, nor consent to any departure by any Subsidiary
Loan Party from its obligations under this Guaranty, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 9.02 of the Credit Agreement) and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 4.04. Notices. All notices and other communications
provided for hereunder shall be in writing or by facsimile and addressed,
delivered or transmitted to the appropriate party in accordance with Section
9.01 of the Credit Agreement (in the case of any Subsidiary Loan Party, in care
of the Borrower).
SECTION 4.05. Additional Guarantors. Upon the execution and
delivery by any other Person of a supplement in the form of Annex I hereto, such
Person shall become a "Subsidiary Loan Party" hereunder with the same force and
effect as if it were originally a party to this Guaranty and named as a
"Subsidiary Loan Party" hereunder. The execution and delivery of such supplement
shall not require the consent of any other Subsidiary Loan Party hereunder, and
the rights and obligations of each Subsidiary Loan Party hereunder shall remain
in full force and effect notwithstanding the addition of any new Subsidiary Loan
Party as a party to this Guaranty.
SECTION 4.06. Release of Guarantor. Upon the termination of
all Commitments and the indefeasible repayment in full of all Obligations, this
Guaranty and all obligations of each Subsidiary Loan Party hereunder shall
terminate, without delivery of any instrument or performance of any act by any
party. In addition, at the request of the Borrower, and at the sole expense of
the Borrower, a Subsidiary Loan Party shall be released from its obligations
hereunder under the circumstances contemplated by the Credit Agreement.
SECTION 4.07. No Waiver; Remedies. In addition to, and not in
limitation of, Sections 1.03 and 1.05, no failure on the part of any Lender or
Agent to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
hereunder preclude any other
18
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 4.08. Section Captions. Section captions used in this
Guaranty are for convenience of reference only, and shall not affect the
construction of this Guaranty.
SECTION 4.09. Severability. Wherever possible each provision
of this Guaranty shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Guaranty.
SECTION 4.10. Governing Law; Entire Agreement, etc. THIS
GUARANTY WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). This Guaranty
and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and thereof and
supersede any prior agreements, written or oral, with respect thereto.
SECTION 4.11. Forum Selection And Consent To Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR ANY SUBSIDIARY LOAN
PARTY IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH SUBSIDIARY
LOAN PARTY HEREBY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 4.04. EACH SUBSIDIARY LOAN PARTY HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
SUBSIDIARY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF, SUCH SUBSIDIARY LOAN PARTY HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT
19
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS.
SECTION 4.12. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT
(ON BEHALF OF ITSELF, EACH LENDER AND THE LONDON AGENT) AND EACH SUBSIDIARY LOAN
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, LENDER OR SUBSIDIARY LOAN
PARTY IN CONNECTION THEREWITH. EACH SUBSIDIARY LOAN PARTY ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH AGENT AND EACH LENDER
ENTERING INTO THE LOAN DOCUMENTS.
SECTION 4.13. Counterparts. This Guaranty may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
20
IN WITNESS WHEREOF, each Subsidiary Loan Party has caused this
Guaranty to be duly executed and delivered by its Responsible Officer as of the
date first above written.
GELMAN SCIENCES, INC.
MEDSEP CORPORATION
MEMTEC FINANCE, INC.
PALL ACQUISITION LLC
PALL AEROPOWER CORPORATION
PALL BIOMEDICAL, INC.
PALL INTERNATIONAL CORPORATION
PALL PUERTO RICO, INC.
PALL-PASS US, INC.
PALL FILTRATION AND SEPARATIONS GROUP INC.
RUSSELL ASSOCIATES INC.
PALL INDUSTRIAL MEMBRANES LLC,
by
------------------------------------
Lisa McDermott, Responsible
Officer of each of the foregoing
Subsidiary Loan Parties
21
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE LENDERS AND THE LONDON AGENT
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
by
-----------------------------
Name:
Title:
ANNEX I
TO THE GUARANTY AGREEMENT
THIS SUPPLEMENT dated as of [ ] (this "Supplement"), is to the
Guaranty Agreement, dated as of July 29, 2005 (as amended, supplemented, amended
and restated or otherwise modified from time to time, the "Guaranty"), among the
Subsidiary Loan Parties (such capitalized term, and other terms used in this
Supplement, to have the meanings set forth in the Guaranty) from time to time
party thereto, in favor of JPMorgan Chase Bank, N.A., as administrative agent
(together with its successor(s) thereto in such capacity, the "Administrative
Agent") for each of the Lenders and the Agents.
WITNESSETH:
WHEREAS pursuant to the provisions of Section 4.05 of the
Guaranty, each of the undersigned is becoming a Subsidiary Loan Party under the
Guaranty; and
WHEREAS each of the undersigned desires to become a
"Subsidiary Loan Party" under the Guaranty in order to induce the Lenders, the
Issuing Bank and the Agents to continue to make Loans or to issue, amend, renew
or extend Letters of Credit under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises, and for
other consideration (the receipt and sufficiency of which is hereby
acknowledged), each of the undersigned agrees, for the benefit of each Lender
and Agent, as follows.
SECTION 1. Party to Guaranty, etc. In accordance with the
terms of the Guaranty, by its signature below, each of the undersigned hereby
irrevocably agrees to become a Subsidiary Loan Party under the Guaranty with the
same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the
terms and provisions of the Guaranty applicable to it as a Subsidiary Loan Party
and (b) represents and warrants that the representations and warranties made by
it as a Subsidiary Loan Party thereunder are true and correct as of the date
hereof. In furtherance of the foregoing, each reference to a "Subsidiary Loan
Party" and/or "Subsidiary Loan Parties" in the Guaranty shall be deemed to
include each of the undersigned.
SECTION 2. Representations. Each of the undersigned hereby
represents and warrants that this Supplement has been duly authorized, executed
and delivered by it and that this Supplement and the Guaranty constitute the
legal, valid and binding obligation of each of the undersigned, enforceable
against it in accordance with its terms.
SECTION 3. Full Force of Guaranty. Except as expressly
supplemented hereby, the Guaranty shall remain in full force and effect in
accordance with its terms.
SECTION 4. Severability. Wherever possible each provision of
this Supplement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Supplement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Supplement or the
Guaranty.
C-1
Form of Guaranty Agreement
2
SECTION 5. Indemnity; Fees and Expenses, etc. Without limiting
the provisions of any other Loan Document, each of the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses
incurred in connection with this Supplement, including reasonable attorney's
fees and expenses of the Administrative Agent's counsel.
SECTION 6. Governing Law; Entire Agreement, etc. THIS
SUPPLEMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). This
Supplement and the other Loan Documents constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and thereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 7. Counterparts. This Supplement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
3
IN WITNESS WHEREOF, each of the undersigned has caused this
Supplement to be duly executed and delivered by its Responsible Officer as of
the date first above written.
[NAME OF ADDITIONAL SUBSIDIARY],
by
---------------------------
Name:
Title:
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE CREDIT PARTIES:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
By
-----------------------------
Name:
Title:
EXHIBIT D
RESERVE COSTS
1. The Mandatory Costs Rate is an addition to the interest rate to
compensate Lenders for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or, in
either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Administrative Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender, in
accordance with the paragraphs set out below. The Mandatory Costs Rate
will be calculated by the Administrative Agent as a weighted average of
the Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Borrowing) and
will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from an office of such
Lender in a Participating Member State will be the percentage notified
by that Lender to the Administrative Agent. This percentage will be
certified by that Lender in its notice to the Administrative Agent to
be its reasonable determination of the cost (expressed as a percentage
of that Lender's participation in all Loans made from that lending
office) of complying with the minimum reserve requirements of the
European Central Bank in respect of loans made from that lending
office.
4. The Additional Cost Rate for any Lender lending from a lending office
in the United Kingdom will be calculated by the Administrative Agent as
follows:
(a) in relation to a Loan denominated in Pounds Sterling:
AB + C(B - D) + E x 0.01
------------------------ percent per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than Pounds Sterling:
E x 0.01
-------- percent per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the applicable
interest rate margin under Section 2.13(a) or (b) and the
Mandatory Costs Rate and, if the Loan is due
D-1
Reserve Costs
2
and unpaid, the additional rate of interest specified in
Section 2.13(d)) payable for the relevant Interest Period on
the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Administrative Agent on interest bearing
Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is the most recent rate of charge payable
by the Administrative Agent to the Financial Services
Authority pursuant to the Fee Rules in respect of the relevant
financial year of the Financial Services Authority and
expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank
of England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of fees
for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate);
(d) "Participating Member State" means any member state of the
European Communities that adopts or has adopted the Euro as its
lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
(e) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e., 5 percent will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the
following information on or prior to the date on which it becomes a
Lender:
3
(a) the jurisdiction of its lending office; and
(b) any other information that the Administrative Agent may reasonably
require for such purpose.
Each Lender shall promptly notify the Administrative Agent of any
change to the information provided by it pursuant to this paragraph.
8. The percentages of each Lender for the purpose of A and C above shall
be determined by the Administrative Agent based upon the information
supplied to it pursuant to paragraphs 7 above and on the assumption
that, unless a Lender notifies the Administrative Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a lending office in the same
jurisdiction as its lending office.
9. The Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3 and 7 above
is true and correct in all respects.
10. The Administrative Agent shall distribute the additional amounts
received as a result of the Mandatory Costs Rate to the Lenders on the
basis of the Additional Cost Rate for each Lender based on the
information provided by each Lender pursuant to paragraphs 3 and 7
above.
11. Any determination by the Administrative Agent pursuant to this Exhibit
in relation to a formula, the Mandatory Costs Rate, an Additional Cost
Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.
12. The Administrative Agent may from time to time, after consultation with
the Borrower and the Lenders, determine and notify to all parties
hereto any amendments which are required to be made to this Exhibit in
order to comply with any change in law, regulation or any requirements
from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any
other authority which replaces all or any of its functions) and any
such determination shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
EXHIBIT E
FORM OF NOTE
[FORM OF]
PROMISSORY NOTE
$[AMOUNT] New York, New York
[DATE]
FOR VALUE RECEIVED, the undersigned, PALL CORPORATION, a New
York corporation (the "Company"), hereby promises to pay to the order of [ ]
(the "Lender") or its registered assigns, at the office of JPMorgan Chase Bank,
N.A. (the "Administrative Agent") at 270 Park Avenue, New York, New York 10017,
on the Maturity Date (as defined in the Five-Year Credit Agreement dated as of
July 29, 2005 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among the Company, the Lenders party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and J. P. Morgan
Europe Limited, as London Agent), the lesser of (a) the principal sum of [ ] ($[
]) and (b) the aggregate unpaid principal amount of all Loans (as defined in the
Credit Agreement) made to the Company by the Lender pursuant to the Credit
Agreement in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount hereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on the dates provided in the Credit
Agreement.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at the rate or rates provided in the Credit Agreement.
The nonexercise by the holder hereof of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof or on a continuation thereof that shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not affect the
obligations of the Company under this Note.
E-1
Form of Note
2
This Note is given subject to the provisions of the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement and is guaranteed as provided therein and in the other Loan
Documents (as defined in the Credit Agreement). This Note shall be governed by,
and construed in accordance with, the laws of the State of New York.
PALL CORPORATION,
By
-------------------------------------
Name:
Title:
3
LOANS AND PAYMENTS
Date Amount Maturity Principal Interest Unpaid Name of Person
and Type of Date Principal Making Notation
Loan Balance of Note
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:_______ __, 20__
To: JPMorgan Chase Bank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as
of July [ ], 2005 (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
and JPMorgan Chase Bank, N.A., as Administrative Agent, Issuing Bank and
Swingline Lender.
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 5.01(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 5.01(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
[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 III 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 3.05 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
3.01 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:
---------------------------------
F-2
Form of Compliance Certificate
For the Quarter/Year ended_______________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 6.03 - PRIORITY INDEBTEDNESS
A. Priority Indebtedness as of the Statement Date: $
-----------------------
B. Consolidated Net Tangible Assets as of the Statement
Date: $
-----------------------
C. 15% of Consolidated Net Tangible Assets as of the
Statement Date (Line I.B (times) 15%): $
-----------------------
II. SECTION 6.11 (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-cash non-recurring charges or losses for
Subject Period: $
-----------------------
7. Non-cash non-recurring gains for Subject Period $
-----------------------
8. Income tax credits or refunds for Subject Period: $
-----------------------
9. Interest income for Subject Period: $
-----------------------
10. Consolidated EBITDA (Lines II.Al + 2 + 3 + 4 +
5 + 6 - 7 - 8 - 9): $
-----------------------
B. Consolidated Interest Charges for Subject Period
less interest income earned by the Borrower and its
Subsidiaries for Subject Period: $
-----------------------
C. Consolidated Net Interest Coverage Ratio (Line II.A.10
(divided by) Line II.B): $ to 1
-----------------
Minimum required:
III. SECTION 6.11(B) - CONSOLIDATED NET LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $
-----------------------
B. Consolidated EBITDA for Subject Period (Line II.A.10
above): $
-----------------------
C. Consolidated Leverage Ratio (Line III.A (divided by) Line III.B): $ to 1
------------------
Maximum permitted:
F-3
Form of Compliance Certificate
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)
- --------------------------------------------------------------------------------------------------------------------
Quarter Ended Quarter Ended Quarter Ended Quarter Ended Twelve Months
CONSOLIDATED Ended
EBITDA __________ __________ __________ __________ __________
- --------------------------------------------------------------------------------------------------------------------
Consolidated
Net Income
- --------------------------------------------------------------------------------------------------------------------
+ Consolidated Interest
Charges
- --------------------------------------------------------------------------------------------------------------------
+ income taxes
- --------------------------------------------------------------------------------------------------------------------
+ depreciation expense
- --------------------------------------------------------------------------------------------------------------------
+ amortization expense
- --------------------------------------------------------------------------------------------------------------------
+ non-cash non-recurring
charges and losses
- --------------------------------------------------------------------------------------------------------------------
- non-cash non-recurring gains
- --------------------------------------------------------------------------------------------------------------------
- income tax credits and
refunds
- --------------------------------------------------------------------------------------------------------------------
- interest income
- --------------------------------------------------------------------------------------------------------------------
= Consolidated EBITDA
- --------------------------------------------------------------------------------------------------------------------
F-4
Form of Compliance Certificate