Exhibit 10.1
EXECUTION COPY
$300,000,000
CREDIT AGREEMENT
Dated as of April 9, 2007,
among
ASHLAND INC.,
as Borrower,
THE LENDERS FROM TIME TO TIME SIGNATORY HERETO,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
SUNTRUST BANK, INC.,
JP MORGAN CHASE BANK, N.A. and
CITIBANK, N.A.,
as Co-Documentation Agents,
THE BANK OF NOVA SCOTIA and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers,
and
THE BANK OF NOVA SCOTIA
as Book Manager.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS................................................1
Section 1.01 Terms Defined Above...............................................................1
Section 1.02 Certain Defined Terms.............................................................1
Section 1.03 Accounting Terms and Determinations..............................................13
ARTICLE II COMMITMENTS......................................................................14
Section 2.01 Loans............................................................................14
Section 2.02 Borrowings, Continuations and Conversions........................................14
Section 2.03 Issuance Procedures, Participations, Disbursements and Reimbursement.............16
Section 2.04 Changes of Commitments...........................................................18
Section 2.05 Fees.............................................................................19
Section 2.06 Several Obligations..............................................................19
Section 2.07 Register; Notes..................................................................19
Section 2.08 Prepayments......................................................................20
Section 2.09 Lending Offices..................................................................21
Section 2.10 Change in Control................................................................21
Section 2.11 Extension of Maturity Date.......................................................21
Section 2.12 Increases in Aggregate Commitments...............................................22
ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST...............................................24
Section 3.01 Repayment of Loans...............................................................24
Section 3.02 Maturity of Loans................................................................24
Section 3.03 Interest.........................................................................24
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC..................................25
Section 4.01 Payments.........................................................................25
Section 4.02 Pro Rata Treatment...............................................................25
Section 4.03 Computations.....................................................................25
Section 4.04 Non-receipt of Funds by the Administrative Agent.................................26
Section 4.05 Set-off, Sharing of Payments, Etc................................................26
Section 4.06 Taxes............................................................................27
ARTICLE V CAPITAL ADEQUACY.................................................................30
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Page
Section 5.01 Additional Costs.................................................................30
Section 5.02 Limitation on Eurodollar Loans...................................................32
Section 5.03 Illegality.......................................................................32
Section 5.04 Base Rate Loans..................................................................32
Section 5.05 Compensation.....................................................................32
ARTICLE VI CONDITIONS PRECEDENT.............................................................33
Section 6.01 Closing and Initial Funding......................................................33
Section 6.02 Initial and Subsequent Loans and Letters of Credit...............................34
ARTICLE VII REPRESENTATIONS AND WARRANTIES...................................................34
Section 7.01 Existence........................................................................35
Section 7.02 Financial Condition..............................................................35
Section 7.03 Litigation.......................................................................35
Section 7.04 No Breach........................................................................35
Section 7.05 Authority........................................................................35
Section 7.06 Approvals........................................................................36
Section 7.07 Use of Loans and Letters of Credit...............................................36
Section 7.08 ERISA............................................................................36
Section 7.09 Taxes............................................................................37
Section 7.10 No Material Misstatements........................................................37
Section 7.11 Investment Company Act...........................................................37
Section 7.12 Public Utility Holding Company Act...............................................37
Section 7.13 Defaults.........................................................................38
Section 7.14 Environmental Matters............................................................38
Section 7.15 Insurance........................................................................38
Section 7.16 Reportable Transaction...........................................................39
ARTICLE VIII AFFIRMATIVE COVENANTS............................................................39
Section 8.01 Reporting Requirements...........................................................39
Section 8.02 Litigation.......................................................................40
Section 8.03 Maintenance, Etc.................................................................40
Section 8.04 Further Assurances...............................................................41
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Page
Section 8.05 Performance of Obligations.......................................................41
Section 8.06 ERISA Information and Compliance.................................................41
Section 8.07 Compliance with Laws.............................................................42
Section 8.08 Payment of Taxes.................................................................42
Section 8.09 Books and Records................................................................42
ARTICLE IX NEGATIVE COVENANTS...............................................................42
Section 9.01 Liens............................................................................42
Section 9.02 Sales and Leasebacks.............................................................44
Section 9.03 Mergers, Etc.....................................................................44
Section 9.04 Proceeds of Notes................................................................45
Section 9.05 ERISA Compliance.................................................................45
Section 9.06 Leverage Ratio...................................................................46
Section 9.07 Transactions with Affiliates.....................................................46
ARTICLE X EVENTS OF DEFAULT; REMEDIES......................................................46
Section 10.01 Events of Default................................................................46
Section 10.02 Remedies.........................................................................47
ARTICLE XI THE ADMINISTRATIVE AGENT.........................................................48
Section 11.01 Appointment, Powers and Immunities...............................................48
Section 11.02 Reliance by Administrative Agent.................................................49
Section 11.03 Defaults.........................................................................49
Section 11.04 Rights as a Lender...............................................................49
Section 11.05 Indemnification..................................................................49
Section 11.06 Non-Reliance on Administrative Agent and other Lenders...........................50
Section 11.07 Action by Administrative Agent...................................................50
Section 11.08 Resignation of Administrative Agent..............................................51
ARTICLE XII MISCELLANEOUS....................................................................51
Section 12.01 Waiver...........................................................................51
Section 12.02 Notices..........................................................................51
Section 12.03 Expenses; Indemnity; Damage Waiver...............................................52
Section 12.04 Amendments, Etc..................................................................53
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Section 12.05 Successors and Assigns...........................................................54
Section 12.06 Assignments and Participations...................................................54
Section 12.07 Invalidity.......................................................................56
Section 12.08 Counterparts.....................................................................56
Section 12.09 References.......................................................................56
Section 12.10 Survival.........................................................................57
Section 12.11 Captions.........................................................................57
Section 12.12 No Oral Agreements...............................................................57
Section 12.13 Governing Law; Submission to Jurisdiction........................................57
Section 12.14 Interest.........................................................................58
Section 12.15 Confidentiality..................................................................59
Section 12.16 Effectiveness....................................................................60
Section 12.17 Termination of Existing Agreement................................................60
Section 12.18 USA Patriot Act..................................................................60
ANNEX, EXHIBITS AND SCHEDULES:
Annex 1 Schedule of Commitments
Exhibit A Form of Note
Exhibit B-1 Form of Borrowing, Continuation and Conversion Request
Exhibit B-2 Form of Issuance Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion
Exhibit E Form of Assignment Agreement
Schedule 2.03(g) Existing Letters of Credit
Schedule 7.03 Litigation
Schedule 7.08 Multiemployer Plans
Schedule 7.09 Taxes
Schedule 7.14 Environmental Matters
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This CREDIT AGREEMENT, dated as of April 9, 2007, is among ASHLAND
INC., a corporation formed under the laws of the Commonwealth of Kentucky
(the "Borrower"); each of the lenders that is a signatory hereto or which
becomes a signatory hereto as provided in Section 12.06 (individually,
together with its successors and assigns, a "Lender" and, collectively, the
"Lenders"); THE BANK OF NOVA SCOTIA (in its individual capacity, "Scotia
Capital"), as the administrative agent (in such capacity, together with its
successors in such capacity, the "Administrative Agent") for the Lenders;
BANK OF AMERICA, N.A., as syndication agent for the Lenders; SUNTRUST BANK,
INC., JP MORGAN CHASE BANK, N.A. and CITIBANK, N.A., collectively as
co-documentation agents for the Lenders; Scotia Capital and BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arrangers; and Scotia Capital, as Book
Manager.
R E C I T A L S
A. The Borrower has requested that the Lenders and the Issuers provide
certain loans and issue certain letters of credit to the Borrower;
B. The Lenders and the Issuers have agreed to make such loans and
issue such letters of credit subject to the terms and conditions of this
Agreement; and
C. In consideration of the mutual covenants and agreements herein
contained and of the loans and commitments hereinafter referred to, the
parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined Above. As used in this Agreement, the terms
"Administrative Agent," "Borrower," "Lender," "Lenders," and "Scotia
Capital" shall have the meanings indicated above.
Section 1.02 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Article
I or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Additional Costs" shall have the meaning assigned such term in
Section 5.01(a).
"Affected Loans" shall have the meaning assigned such term in Section
5.04.
"Affiliate" of any Person shall mean any Person directly or indirectly
Owned by, Owning or under common Ownership with such first Person. For
purposes of this definition, any Person which owns directly or indirectly
25% or more of the securities having ordinary voting power for the election
of directors or other governing body of a corporation or 25% or more of the
partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to "Own" (including,
with its correlative meanings, "Owned by" and "under common Ownership
with") such corporation or other Person.
"Aggregate Commitments" at any time shall equal the sum of the
Commitments of the Lenders ($300,000,000, as of the Effective Date), as the
same may be reduced pursuant to Section 2.04(a) or increased pursuant to
Section 2.12.
"Agreement" shall mean this Credit Agreement, as the same may from
time to time be amended or supplemented.
"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, or (b) the Federal
Funds 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.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the lending office of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or
such other offices of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the Administrative Agent and
the Borrower as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Margin" shall mean, for any day, (a) zero percent (0%) per
annum with respect to Base Rate Loans and (b) the applicable rate per annum
set forth below, based upon the ratings by Moody's and S&P, respectively,
applicable on such day to the Index Debt:
- -------------------------- ------------------------
Index Debt: Applicable Margin
- -------------------------- ------------------------
Category 1 0.400%
- -------------------------- ------------------------
Category 2 0.500%
- -------------------------- ------------------------
Category 3 0.625%
- -------------------------- ------------------------
Category 4 0.625%
- -------------------------- ------------------------
Category 5 1.000%
- -------------------------- ------------------------
Category 6 1.250%
- -------------------------- ------------------------
For purposes of the foregoing and for purposes of calculating the Standby
Fee and the Letter of Credit Fee, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then
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 Margin shall be based on the higher of the two ratings;
(iii) if more than one Category falls between the rating levels established
or deemed to have been established by Moody's and S&P for the Index Debt,
the Applicable Margin shall be based on the Category above the lowest
rating; (iv) if the ratings established or deemed to have been established
by Moody's and S&P for the Index Debt shall be changed (other than as a
result of a change in the rating system of Moody's or S&P), such change
shall be effective as of the earlier of the (1) date on which it is first
announced by the applicable rating agency and (2) the date on which
Borrower gives notice of such change to the Administrative Agent; (v) if
the ratio of Consolidated Debt to the sum of Consolidated Debt and
Stockholders' Equity at any time exceeds 20%, the Applicable Margin for
Category 4 shall be 0.750% per annum; and
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(vi) initially, the Applicable Margin shall be determined based upon a
Category 4 Index Debt rating. For the purposes hereof, Borrower shall be
required to notify the Administrative Agent of such change immediately upon
gaining knowledge of such change. Each change in the Applicable Margin
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 Moody's or S&P 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 any such amendment, the Applicable Margin shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Assignment" shall have the meaning assigned such term in Section
12.06(b).
"Authorized Officer" means, relative to the Borrower, those of its
officers, general partners or managing members (as applicable) whose
signatures and incumbency shall have been certified to the Administrative
Agent, the Lenders and the Issuers pursuant to Section 6.01(ii), or
otherwise designated as Authorized Officers for purposes of this Agreement
in resolutions of the Borrower's board of directors.
"Bank of America" shall mean Bank of America, N.A.
"BAS" shall mean Banc of America Securities LLC.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Alternate Base Rate.
"Board" shall have the meaning assigned such term in Section 2.10.
"Business Day" shall mean any day other than a day on which commercial
banks are authorized or required to close in New York City and, where such
term is used in the definition of "Quarterly Date" or if such day relates
to a borrowing or continuation of, a payment or prepayment of principal of
or interest on, or a conversion of or into, or the Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any such
borrowing or continuation, payment, prepayment, conversion or Interest
Period, any day which is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"Cash Collateralize" means, with respect to a Letter of Credit, the
deposit of immediately available funds into a cash collateral account
maintained with (or on behalf of) the Administrative Agent on terms
satisfactory to the Administrative Agent in an amount equal to the Stated
Amount of such Letter of Credit.
"Category 1" means BBB+ by S&P and/or Baa1 by Moody's.
"Category 2" means BBB by S&P and/or Baa2 by Moody's.
"Category 3" means BBB- by S&P and/or Baa3 by Moody's.
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"Category 4" means BB+ by S&P and/or Ba1 by Moody's.
"Category 5" means BB by S&P and/or Ba2 by Moody's.
"Category 6" means lower than BB by S&P and/or Ba2 by Moody's.
"Change in Control" shall have the meaning set forth in Section 2.10.
"Closing Date" shall mean April 9, 2007.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and any successor statute.
"Commitment" shall mean, for any Lender, its obligation to make
Committed Loans or participate in Letters of Credit up to the amount of the
Commitment for such Lender on Annex 1 hereto, as modified from time to time
to reflect any adjustments permitted or required hereby. Unless the context
shall otherwise require, the term "Commitment" shall also include any
Commitment provided in accordance with Section 2.12.
"Committed Loan" shall mean a Revolving Loan. Unless the context shall
otherwise require, the term "Committed Loan" shall also include any loan
made pursuant to the increase in the Aggregate Commitments in accordance
with Section 2.12.
"Consolidated" refers to the consolidation in accordance with
generally accepted accounting principles of the accounts of the Borrower
and those of its Subsidiaries which are Consolidated in accordance with
GAAP.
"Consolidated Subsidiaries" shall mean each Subsidiary of the Borrower
(whether now existing or hereafter created or acquired) the financial
statements of which shall be (or should have been) Consolidated with the
financial statements of the Borrower in accordance with GAAP.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
to invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness of any other Person (other than by endorsements of instruments
in the course of collection), or guarantees the payment of dividends or
other distributions upon the capital securities of any other Person. The
amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the
outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
4
"Debt" shall mean, for any Person the sum of the following (without
duplication): (i) all obligations of such Person for borrowed money or
evidenced by bonds, commercial paper, debentures, notes or other similar
instruments; (ii) all obligations of such Person (whether contingent or
otherwise) in respect of bankers' acceptances, reimbursement obligations
for amounts paid under letters of credit, surety or other bonds and similar
instruments; (iii) all obligations of such Person to pay the deferred
purchase price of Property or services (other than for borrowed money);
(iv) all obligations under leases which shall have been, or should have
been, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable (whether contingent or otherwise); (v) all Debt
(as described in the other clauses of this definition) and other
obligations of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person; (vi) all Debt (as
described in the other clauses of this definition) and other obligations of
others guaranteed by such Person or in which such Person otherwise assures
a creditor against loss of the debtor or obligations of others; (vii) all
obligations or undertakings of such Person to maintain or cause to be
maintained the financial position or covenants of others or to purchase the
Debt or Property of others; (viii) obligations to pay for goods or services
whether or not such goods or services are actually received or utilized by
such Person such as "take or pay," "through-put" or "deficiency"
agreements; (ix) any capital stock of such Person in which such Person has
a mandatory obligation to redeem such stock; (x) any Debt of a Special
Entity for which such Person is liable either by agreement or because of a
Governmental Requirement. Notwithstanding the foregoing, Debt shall not
include (1) trade payables incurred in the ordinary course of business or
any obligation set forth in (v), (vi), (vii), (viii), (ix) or (x) above
which would not be required to be disclosed in an audited Consolidated
balance sheet of the Borrower and its Subsidiaries or in the notes thereto
as being immaterial, and (2) accrued interest, fees and charges which are
not past due.
"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"Disbursement" is defined in Section 2.03(c).
"Disbursement Date" is defined in Section 2.03(c).
"Documentary Letter of Credit" means a letter of credit issued to
support the payment of goods and services used in the Borrower's business.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Effective Date" shall have the meaning assigned such term in Section
12.16.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereto, and having a combined
capital and surplus of at least $100,000,000 at the time any assignment is
made pursuant to Section 12.06; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital and surplus
of at least $100,000,000 at the time any assignment is made pursuant to
Section 12.06 provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is
also a member of the
5
OECD; and (c) a Person that is primarily engaged in the business of
commercial lending and that is (i) a Subsidiary of a Bank, (ii) a
Subsidiary of a Person of which a Bank is a Subsidiary, or (iii) a Person
of which a Bank is a Subsidiary; provided that any Eligible Assignee must
have a minimum senior unsecured credit rating of at least BBB by S&P and
Baa2 by Moody's.
"Environmental Laws" shall mean any and all Governmental Requirements
pertaining to health or the environment in effect in any and all
jurisdictions in which the Borrower or any Subsidiary is conducting or at
any time has conducted business, or where any Property of the Borrower or
any Subsidiary is located, including without limitation, the Oil Pollution
Act of 1990 ("OPA"), the Clean Air Act, as amended, the Comprehensive
Environmental, Response, Compensation, and Liability Act of 1980
("CERCLA"), as amended, the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as amended, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, the
Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as amended, and other
environmental conservation or protection laws. The term "oil" shall have
the meaning specified in OPA, the terms "hazardous substance" and "release"
(or "threatened release") have the meanings specified in CERCLA, and the
terms "solid waste" and "disposal" (or "disposed") have the meanings
specified in RCRA; provided, however, that (i) in the event either OPA,
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply subsequent to the effective date
of such amendment and (ii) to the extent the applicable laws of the state
in which any Property of the Borrower or any Subsidiary is located
establish a meaning for "oil," "hazardous substance," "release," "solid
waste" or "disposal" which is broader than that specified in either OPA,
CERCLA or RCRA, such broader meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and any successor statute.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower or any Subsidiary would be
deemed to be a "single employer" within the meaning of section 4001(b)(1)
of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described in Section
4043 of ERISA and the regulations issued thereunder, (ii) the withdrawal of
the Borrower, any Subsidiary or any ERISA Affiliate from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, (iii) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section
4041 of ERISA, (iv) the institution of proceedings to terminate a Plan by
the PBGC or (v) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan.
"Eurodollar Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of
"Eurodollar Rate".
6
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, the term "Eurodollar Rate"
shall mean, for any Eurodollar Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"Event of Default" shall have the meaning assigned such term in
Section 10.01.
"Excess Margin Stock" shall mean that amount by which the value of all
Margin Stock owned by the Borrower and its Subsidiaries exceeds 25% of the
value of all of the Property owned by the Borrower and its Subsidiaries
subject to Section 9.01.
"Exchange Act" shall have the meaning assigned such term in Section
9.04.
"Existing Agreement" means the 5-year Revolving Credit Agreement,
dated as of March 21, 2005 (as amended, supplemented or otherwise
modified), among the Borrower, the Existing Lenders and The Bank of Nova
Scotia, as administrative agent.
"Existing Lenders" shall mean the lenders under the Existing
Agreement.
"Federal Funds Rate" shall mean, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication as published by the Federal Reserve Bank of New York on the
preceding Business Day opposite the caption "Federal Funds (Effective)",
provided that (i) if the date for which such rate is to be determined is
not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions published on the next preceding Business Day, and (ii)
if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"Fee Letters" means, collectively, (i) that certain letter agreement
from the Administrative Agent to the Borrower dated as of March 5, 2007 and
(ii) that certain letter agreement from Bank of America and BAS to the
Borrower dated as of March 5, 2007, in each case concerning certain fees in
connection with this Agreement and any agreements or instruments executed
in connection therewith, as the same may be amended or replaced from time
to time.
"Financial Officer" shall mean the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower. Unless
otherwise specified, all references to a Financial Officer herein shall
mean a Financial Officer of the Borrower.
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"Financial Statements" shall mean the Consolidated financial statement
or statements of the Borrower and its Subsidiaries described or referred to
in Section 7.02, including the notes attached thereto.
"Fronting Fee" has the meaning specified in Section 2.05(b).
"Funded Debt" has the meaning specified in Section 9.02.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority" shall include the country, the state, county,
city and political subdivisions in which any Person or such Person's
Property is located or which exercises valid jurisdiction over any such
Person or such Person's Property, and any court, agency, department,
commission, board, bureau or instrumentality of any of them including
monetary authorities which exercises valid jurisdiction over any such
Person or such Person's Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental
Authority having jurisdiction over, where applicable, the Borrower, the
Subsidiaries or any of their Property or the Administrative Agent, any
Lender or any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or other
directive or requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy regulations and
occupational, safety and health standards or controls, of any Governmental
Authority.
"Granting Lender" has the meaning specified in Section 12.06(g).
"Hedging Agreement" shall mean any commodity agreement or option with
respect to any commodity agreement (other than sales contracts entered into
in the normal course of business and not as a hedging vehicle) or interest
rate or currency swap, cap, floor, collar, forward agreement or other
exchange or protection agreements or any option with respect to such
transactions.
"Highest Lawful Rate" shall mean, with respect to each Lender, the
maximum nonusurious interest rate, if any, that at any time or from time to
time may be contracted for, taken, reserved, charged or received on the
Notes or on other Indebtedness under laws applicable to such Lender which
are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
"Indebtedness" shall mean any and all amounts owing or to be owing by
the Borrower to the Administrative Agent and the Lenders in connection with
this Agreement, the Notes and any Letter of Credit Outstandings and all
renewals, extensions and/or rearrangements of any of the above.
8
"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 Funding" shall mean the funding of the initial Loans pursuant
to Section 6.01 hereof.
"Interest Period" shall mean, (i) with respect to any Eurodollar Loan,
the period commencing on the date such Eurodollar Loan is made and ending
on the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Borrower may select as provided in
Section 2.02 (or such longer period as may be requested by the Borrower and
agreed to by all Lenders); and (ii) with respect to any Base Rate Loan, the
period commencing on the date such Loan is made and ending 90 days
thereafter, except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month.
Notwithstanding the foregoing: (i) no Interest Period may commence
before and end after the Termination Date; (ii) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the
next succeeding Business Day (or, if such next succeeding Business Day
falls in the next succeeding calendar month, on the next preceding Business
Day); and (iii) no Interest Period shall have a duration of less than one
month and, if the Interest Period for any Eurodollar Loans would otherwise
be for a shorter period, such Loans shall not be available hereunder.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in
the form of Exhibit B-2 hereto.
"Issuer" means the Administrative Agent, SunTrust Bank, Inc. or any
other Lender, subject to the approval of the Borrower.
"Lead Arrangers" means, collectively, Scotia Capital and BAS.
"Lenders" shall have the meaning set forth in the preamble and shall
include the Issuer. Unless the context shall otherwise require, the term
"Lenders" shall also include each Lender or lender providing Commitments
pursuant to Section 2.12.
"Lending Office" shall mean the lending office of the Administrative
Agent, presently located at One Liberty Plaza, New York, New York 10006, or
such other location as designated by the Administrative Agent from time to
time.
"Letter of Credit" means collectively, Standby Letters of Credit and
Documentary Letters of Credit.
"Letter of Credit Commitment" means an Issuer's obligation to issue
Letters of Credit pursuant to Section 2.01(b).
9
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $300,000,000 as such amount may be permanently reduced from time
to time pursuant to Section 2.03 or increased pursuant to Section 2.12.
"Letter of Credit Fee" is defined in clause (c) of Section 2.05.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of (i) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit, and (ii) the then
aggregate amount of all unpaid and outstanding Reimbursement Obligations.
"Lien" shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute or contract, and whether
such obligation or claim is fixed or contingent, and including but not
limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes.
"Loans" shall mean the loans as provided for by Sections 2.01(a).
Loans may be Committed Loans which may be Base Rate Loans or Eurodollar
Loans.
"Majority Lenders" shall mean, at any time while no Loans are
outstanding, Lenders having in excess of fifty percent (50%) of the
Aggregate Commitments and, at any time while Loans are outstanding, Lenders
holding in excess of percent (50%) of the outstanding aggregate principal
amount of the Loans (without regard to any sale by a Lender of a
participation in any Loan under Section 12.06(c)).
"Margin Stock" shall have the meaning set forth in Regulation U of the
Board of Governors of the Federal Reserve System as the same may be amended
or interpreted from time to time.
"Material Adverse Effect" shall mean a material adverse change in the
financial position or results of operations of the Borrower and its
Subsidiaries taken as a whole.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
section 3(37) or 4001 (a)(3) of ERISA which is, or within the six calendar
years preceding this Agreement was, contributed to by the Borrower, a
Subsidiary or an ERISA Affiliate.
"Notes" shall mean the Notes provided for by Section 2.07, together
with any and all renewals, increases, rearrangements, substitutions or
modifications thereof.
"OFAC" shall mean the U.S. Department of the Treasury's Office of
Foreign Assets Control.
"OPA" shall have the meaning set forth in the definition of
"Environmental Laws".
"Other Taxes" shall have the meaning assigned such term in Section
4.06(b).
10
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions.
"Pension Plan" means a Plan subject to the provisions of Title IV of
ERISA and Section 412 of the Code or Section 302 of ERISA.
"Percentage Share" shall mean the percentage of the Aggregate
Commitments to be provided by a Lender under this Agreement as indicated on
Annex 1 hereto, as modified from time to time to reflect any adjustments
permitted or required hereby.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization
or government or any agency, instrumentality or political subdivision
thereof, or any other form of entity except as otherwise defined in Section
2.10 hereof.
"Plan" shall mean any employee pension benefit plan, as defined in
Section 3(2) of ERISA, which (i) is currently or hereafter sponsored,
maintained or contributed to by the Borrower, any Subsidiary or an ERISA
Affiliate or (ii) was at any time during the preceding six calendar years
sponsored, maintained or contributed to, by the Borrower, any Subsidiary or
an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan or any other amount payable by the Borrower under this Agreement or
the Notes, a rate per annum during the period commencing on the date of
occurrence of an Event of Default until such amount is paid in full or all
Events of Default are cured or waived equal to 2% per annum above the rate
of interest in effect from time to time including the Applicable Margin (if
any), but in no event to exceed the Highest Lawful Rate; provided, however,
for a Eurodollar Loan, the "Post-Default Rate" for such principal shall be,
for the period commencing on the date of occurrence of an Event of Default
and ending on the earlier to occur of the last day of the Interest Period
therefor or the date all Events of Default are cured or waived, 2% per
annum above the interest rate for such Loan as provided in Section
3.03(a)(ii), but in no event to exceed the Highest Lawful Rate.
"Prime Rate" shall mean at any time, the rate of interest then most
recently established by the Administrative Agent in New York as its base
rate for Dollars loaned in the United States. Such rate is set by the
Administrative Agent as a general prime rate of interest, taking into
account such factors as the Administrative Agent may deem appropriate, it
being understood that many of the Administrative Agent's commercial or
other loans are priced in relation to such rate, that it is not necessarily
the lowest or best rate actually charged to any customer and that the
Administrative Agent may make various commercial or other loans at rates of
interest having no relationship to such rate.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Dates" shall mean the last day of each March, June,
September, and December, in each year, the first of which shall be June 30,
2007; provided, however, that if any such day is not a Business Day, such
Quarterly Date shall be the next succeeding Business Day.
11
"Register" is defined in clause (a) of Section 2.07.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be amended
or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the Closing Date in any Governmental Requirement (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders
(including such Lender or its Applicable Lending Office) of or under any
Governmental Requirement (whether or not having the force of law) by any
Governmental Authority charged with the interpretation or administration
thereof.
"Reimbursement Obligation" is defined in Section 2.03(d).
"Required Payment" shall have the meaning assigned such term in
Section 4.04.
"Revolving Loan" shall mean a Loan made pursuant to Section 2.01(a).
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"SPC" has the meaning specified in Section 12.06(g).
"Special Entity" shall mean any joint venture, limited liability
company or partnership, general or limited partnership or any other type of
partnership or company, other than a corporation, in which the Borrower or
one or more of its other Subsidiaries is a member, owner, partner or joint
venturer and owns, directly or indirectly, at least a majority of the
equity of such entity, but excluding any tax partnerships that are not
classified as partnerships under state law.
"Standby Fee" shall mean, the applicable rate per annum set forth
below based upon the ratings by Moody's and S&P, respectively, applicable
on such date to the Index Debt:
------------------------------ ---------------------------
Index Debt Standby Fee
------------------------------ ---------------------------
Category 1 0.080%
------------------------------ ---------------------------
Category 2 0.100%
------------------------------ ---------------------------
Category 3 0.125%
------------------------------ ---------------------------
Category 4 0.125%
------------------------------ ---------------------------
Category 5 0.200%
------------------------------ ---------------------------
Category 6 0.250%;
------------------------------ ---------------------------
provided, however, if the ratio of consolidated Debt to the sum of
Consolidated Debt and Stockholders' Equity at any time exceeds 20%, the
Standby Fee for Category 4 shall be 0.150% per annum.
"Standby Letter of Credit" means a letter of credit issued to support
payment, when due or after default, of obligations based on money loaned or
advanced, or upon the occurrence or non-occurrence of another contingency.
12
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such
Letter of Credit.
"Stated Expiry Date" is defined in Section 2.03(a).
"Stated Maturity Date" means, with respect to all Loans, April 9,
2012, or as such date is extended pursuant to Section 2.11, but in no event
shall such date be later than April 9, 2014.
"Stockholder's Equity" shall mean the common stockholders' equity of
Borrower and its Subsidiaries on a Consolidated basis (in the calculation
of which the book value of any treasury shares carried as an asset shall be
deducted).
"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 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. Unless otherwise indicated herein, each
reference to the term "Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Subsidiary" shall mean, at the time of any determination
thereof, any Subsidiary which as of such time meets the definition of
"significant subsidiary" contained in Regulation S-X of the SEC (as amended
from time to time), so long as it is a Subsidiary, but whether or not it
otherwise meets such definition, Ashland Paving and Construction, Inc.
"Taxes" shall have the meaning assigned such term in Section 4.06(a).
"Termination Date" shall mean the earlier to occur of (i) April 9,
2007 (if the conditions precedent in Section 6.01 have not occurred on or
prior to such day) or (ii) the Stated Maturity Date unless the Aggregate
Commitments are sooner terminated (or Cash Collaterized) pursuant to
Section 2.04(a), 2.10 or 10.02 hereof.
"Type" shall mean, with respect to any Loan, a Base Rate Loan or a
Eurodollar Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
accumulated benefit obligations under Financial Accounting Standard 87,
determined in accordance with the assumptions used by the Plan's actuary
for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year, over the current value of that Pension Plan's assets.
Section 1.03 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted,
all determinations with respect to accounting matters hereunder shall be
made, and all financial statements and certificates and reports as to
financial matters required to be furnished to the Administrative Agent or
the Lenders hereunder shall be prepared, in accordance with GAAP, applied
on a basis consistent
13
with the audited financial statements of the Borrower referred to in
Section 7.02 (except for changes concurred with by the Borrower's
independent public accountants).
ARTICLE II
Commitments
Section 2.01 Loans.
(a) Revolving Loans. Each Lender severally agrees, on the terms of
this Agreement, to make revolving loans (herein called "Revolving Loans")
to the Borrower during the period from and including (i) the Closing Date
or (ii) such later date that such Lender becomes a party to this Agreement,
to but excluding, the Termination Date in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount of such
Lender's Commitment as then in effect; provided, however, that the
aggregate principal amount of all Loans and Letter of Credit Outstandings
by all Lenders hereunder at any one time outstanding shall not exceed the
Aggregate Commitments. Subject to the terms of this Agreement, during the
period from the Effective Date to but excluding, the Termination Date, the
Borrower may borrow, repay and reborrow the amount described in this
Section 2.01(a).
(b) Letter of Credit Commitment. From time to time on any Business Day
occurring from the Effective Date but no later than three (3) days prior to
the Termination Date, the relevant Issuer agrees that it will:
(i) issue one or more Standby Letters of Credit or Documentary Letters
of Credit for the account of the Borrower in the Stated Amount requested by
the Borrower on such day; or
(ii) extend the Stated Expiry Date of an existing Standby Letter of
Credit previously issued hereunder.
No Issuer shall be permitted or required to issue any Letter of Credit if,
after giving effect thereto, (i) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or
(ii) the sum of the aggregate amount of all Letter of Credit Outstandings
plus the aggregate principal amount of all Loans then outstanding would
exceed the Aggregate Commitments.
(c) Limitation on Types of Loans. Subject to the other terms and
provisions of this Agreement, at the option of the Borrower, the Committed
Loans may be Base Rate Loans or Eurodollar Loans; provided that, without
the prior written consent of the Majority Lenders, with respect to
Committed Loans, no more than five (5) Eurodollar Loans may be outstanding
at any time to any Lender.
Section 2.02 Borrowings, Continuations and Conversions.
(a) Borrowings. The Borrower shall give the Administrative Agent
(which shall promptly notify the Lenders) advance notice as hereinafter
provided of each borrowing of Committed Loans hereunder, which shall
specify the aggregate amount of such borrowing, the
14
Type and the date (which shall be a Business Day) of such Loans to be
borrowed and (in the case of Eurodollar Loans) the duration of the Interest
Period therefor.
(b) Minimum Amounts. If the initial borrowing consists in whole or in
part of Eurodollar Loans, such Eurodollar Loans shall be in amounts of at
least $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(c) Notices. All Committed Loan borrowings, continuations and
conversions require advance written notice to the Administrative Agent
(which shall promptly notify the Lenders) in the form of Exhibit B-1 (or
telephonic notice promptly confirmed by such a written notice), which in
each case shall be irrevocable, from the Borrower to be received by the
Administrative Agent not later than 11:00 a.m. New York City time on the
Business Day of each Base Rate Loan borrowing and three Business Days prior
to the date of each Eurodollar Loan borrowing, continuation or conversion.
Without in any way limiting the Borrower's obligation to confirm in writing
any telephonic notice, the Administrative Agent may act without liability
upon the basis of telephonic notice believed by the Administrative Agent in
good faith to be from the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's record of the terms of such telephonic
notice except in the case of gross negligence or willful misconduct by the
Administrative Agent.
(d) Continuation Options. Subject to the provisions made in this
Section 2.02(d), the Borrower may elect to continue as a new Loan all or
any part of any Committed Loan beyond the expiration of the then current
Interest Period relating thereto by giving advance notice as provided in
Section 2.02(c) to the Administrative Agent (which shall promptly notify
the Lenders) of such election, specifying the amount of such Loan to be
continued as a new Committed Loan, the type of Loan and the Interest Period
therefor. In the absence of such a timely and proper election, the Borrower
shall be deemed to have elected to continue any such Loan as a Base Rate
Loan (if such Committed Loan is a Eurodollar Loan, pursuant to a conversion
as set forth in Section 2.02(e)). All or any part of any Committed Loan may
be continued as provided herein, provided that (i) with respect to a
Eurodollar Loan continued as a new Eurodollar Loan, any continuation of any
such Loan shall be (as to each Loan as continued for an applicable Interest
Period) in amounts of at least $5,000,000 or any whole multiple of
$1,000,000 in excess thereof and (ii) no Default shall have occurred and be
continuing.
(e) Conversion Options. The Borrower may elect to convert all or any
part of any Committed Loan which is a Eurodollar Loan on the last day of
the then current Interest Period relating thereto to a Base Rate Loan by
giving advance notice as provided in Section 2.02(c) to the Administrative
Agent (which shall promptly notify the Lenders) of such election. Subject
to the provisions made in this Section 2.02(e), the Borrower may elect to
convert all or any part of any Committed Loan which is a Base Rate Loan at
any time and from time to time to a Eurodollar Loan by giving advance
notice as provided in Section 2.02(c) to the Administrative Agent (which
shall promptly notify the Lenders) of such election. All or any part of any
outstanding Committed Loan may be converted as provided herein, provided
that (i) any conversion of any Base Rate Loan into a Eurodollar Loan shall
be (as to each such Loan into which there is a conversion for an applicable
Interest Period) in amounts of at least $5,000,000 or any whole multiple of
$1,000,000 in excess thereof and (ii) no Default shall have occurred and be
continuing. Each Committed Loan that is converted hereunder shall be a new
Committed
15
Loan, and the Interest Period applicable to such converted Committed Loan
shall terminate as of the effective date of such conversion.
(f) Advances. Not later than 1:00 p.m. New York City time on the date
specified for each borrowing hereunder, each Lender shall make available
the amount of the Loan to be made by it on such date to the Administrative
Agent, to an account which the Administrative Agent shall specify, in
immediately available funds, for the account of the Borrower. The amounts
so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, promptly be made available to the Borrower by
depositing the same, in immediately available funds, in an account of the
Borrower, designated by the Borrower and maintained at the Lending Office.
Section 2.03 Issuance Procedures, Participations, Disbursements and
Reimbursement.
(a) By delivering to the Administrative Agent an Issuance Request in
the form of Exhibit B-2 hereto, on or before 10:00 a.m. on a Business Day,
the Borrower may from time to time irrevocably request on not less than
three (3) nor more than ten (10) Business Days' notice, in the case of an
initial issuance of a Letter of Credit and not less than three (3) Business
Days' prior notice, in the case of a request for the extension of the
Stated Expiry Date of a Standby Letter of Credit (in each case, unless a
shorter notice period is agreed to by the Issuer, in its sole discretion),
that an Issuer issue, or with respect to a Standby Letter of Credit, extend
the Stated Expiry Date, a Letter of Credit in such form as may be requested
by the Borrower and approved by such Issuer, solely for the purposes
described in Section 7.07. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the
earlier to occur of (i) the Termination Date, (ii) in the case of a Standby
Letter of Credit (unless otherwise agreed to by an Issuer, in its sole
discretion), one (1) year from the date of its issuance or (iii) in the
case of a Documentary Letter of Credit, six (6) months from the date of its
issuance. Each Issuer will make available to the beneficiary thereof the
original of the Letter of Credit which it issues.
(b) Upon the issuance of each Letter of Credit, and without further
action, each Lender (other than the Issuer) shall be deemed to have
irrevocably purchased, to the extent of its Percentage Share, a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto), and such
Lender shall, to the extent of its Percentage Share, be responsible for
reimbursing within one (1) Business Day of receiving notice from the Issuer
for Reimbursement Obligations which have not been reimbursed by the
Borrower in accordance with Section 2.03(c) (with the terms of this Section
surviving the termination of this Agreement). The issuing Lender shall, to
the extent of its Percentage Share, be entitled to receive a ratable
portion of the Letter of Credit fees payable pursuant to Section 2.05(c)
with respect to each Letter of Credit. To the extent that any Lender has
reimbursed any Issuer for a Disbursement, such Lender shall be entitled to
receive its ratable portion of any amounts subsequently received (from the
Borrower or otherwise) in respect of such Disbursement.
(c) An Issuer will notify the Borrower and the Administrative Agent
promptly of the presentment for payment of any Letter of Credit issued by
such Issuer, together with notice of the date (the "Disbursement Date")
such payment shall be made (each such payment, a "Disbursement"). Subject
to the terms and provisions of such Letter of Credit and this
16
Agreement, the applicable Issuer shall make such payment to the beneficiary
(or its designee) of such Letter of Credit. On or prior to 11:00 a.m. on
the first Business Day following the Disbursement Date, the Borrower will
reimburse the Administrative Agent, for the account of the applicable
Issuer, for all amounts which such Issuer has disbursed under such Letter
of Credit, together with interest thereon at a rate per annum equal to the
rate per annum then in effect for Base Rate Loans (with the then Applicable
Margin for Revolving Loans accruing on such amount) pursuant to Section
3.03 for the period from the Disbursement Date through the date of such
reimbursement. Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrower hereby
acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder.
(d) The obligation (a "Reimbursement Obligation") of the Borrower
under Section 2.03(c) to reimburse an Issuer with respect to each
Disbursement (including interest thereon), and, upon the failure of the
Borrower to reimburse an Issuer, each Lender's obligation under Section
2.03(b) to reimburse an Issuer, shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Lender, as the case may be,
may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms
of the applicable Letter of Credit (if, in such Issuer's good faith
opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of
such Letter of Credit; provided that, after paying in full its
Reimbursement Obligation hereunder, nothing herein shall adversely affect
the right of the Borrower or such Lender, as the case may be, to commence
any proceeding against an Issuer for any wrongful Disbursement made by such
Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the part of such
Issuer.
(e) Upon the occurrence and during the continuation of any Default
under Section 10.01 or upon notification by the Administrative Agent
(acting at the direction of the Required Lenders) to the Borrower of its
obligations under this Section, following the occurrence and during the
continuation of any other Event of Default,
(i) the aggregate Stated Amount of all Letters of Credit shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuers of such Letters of
Credit (notwithstanding that such amount may not in fact have been paid or
disbursed); and
(ii) the Borrower shall be immediately obligated to reimburse the
Issuers for the amount deemed to have been so paid or disbursed by such
Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited
in immediately available funds with the Administrative Agent and held as
collateral security for the Reimbursement Obligations. When all Defaults
giving rise to the deemed disbursements under this Section have been cured
or waived the Administrative Agent shall return to the Borrower all amounts
then on deposit with the Administrative Agent pursuant to this Section
which have not been applied to the satisfaction of the Reimbursement
Obligations.
17
(f) The Borrower, and to the extent set forth in Section 2.03(b), each
Revolving Loan Lender shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Issuer
(except to the extent of its own gross negligence or willful misconduct)
shall be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(ii) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(iii) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(v) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of
the rights or powers granted to any Issuer or any Lender hereunder.
(g) Existing Letters of Credit. Schedule 2.03(g) contains a schedule
of existing letters of credit issued pursuant to the Existing Agreement for
the account of the Borrower and its Subsidiaries prior to the Effective
Date. From and after the Effective Date, such letters of credit shall be
deemed to be Letters of Credit hereunder.
Section 2.04 Changes of Commitments.
(a) The Borrower shall have the right to terminate or to reduce the
amount of the Aggregate Commitments at any time or from time to time upon
not less than three (3) Business Days' prior notice to the Administrative
Agent (which shall promptly notify the Lenders) of each such termination or
reduction, which notice shall specify the effective date thereof and the
amount of any such reduction (which shall not be less than $10,000,000 or
any whole multiple of $1,000,000 in excess thereof) and shall be
irrevocable and effective only upon receipt by the Administrative Agent.
(b) The Aggregate Commitments once terminated or reduced may not be
reinstated, except as otherwise set forth in Section 2.12.
18
Section 2.05 Fees.
(a) The Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Percentage Share a fee equal to the
Standby Fee multiplied by the average daily unused portion of the Aggregate
Commitments for the period from and including the Closing Date up to but
excluding either the earlier of the date the Aggregate Commitments are
terminated or the Termination Date. The accrued Standby Fees shall be
payable quarterly in arrears on each Quarterly Date, on the Termination
Date, and thereafter on demand. The Standby Fee shall be calculated
quarterly in arrears, and if there is any change in the Standby Fee during
any quarter, the average daily unused portion shall be computed and
multiplied by the Standby Fee separately for each period during such
quarter that the Standby Fee was in effect. The Standby Fee shall accrue at
all times, including at any time when one or more conditions in Article VI
is not met.
(b) The Borrower shall pay to the Administrative Agent, for the pro
rata account of the applicable Issuer, a Letter of Credit fronting fee (the
"Fronting Fee"), in an amount to be agreed upon by such Issuer and the
Borrower at the time of the issuance of each Letter of Credit, payable
quarterly in arrears following the issuance of such Letter of Credit and
(if earlier), on the date of any termination or expiration of such Letter
of Credit. In addition, each Issuer's customary administrative, issuance,
amendment, payment and negotiation fees shall be payable to such Issuer,
for its own account, on the dates and in the amounts from time to time
notified to the Borrower by such Issuer.
(c) The Borrower agrees to pay to the Administrative Agent, for the
pro rata account of each Lender (including the applicable Issuer, in its
capacity as a Lender), a Letter of Credit fee (the "Letter of Credit Fee")
in an amount equal to the then effective Applicable Margin for Eurodollar
Loans, payable quarterly in arrears following the issuance of such Letter
of Credit and (if earlier), on the date of any termination or expiration of
such Letter of Credit.
(d) The Borrower shall pay to each of the Administrative Agent, Bank
of America and each Lead Arranger for its account such other fees as are
set forth in the Fee Letters on the dates specified therein to the extent
not paid prior to the Closing Date.
Section 2.06 Several Obligations. The failure of any Lender to make
any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to make a
Loan to be made by such other Lender.
Section 2.07 Register; Notes.
(a) The Borrower hereby designates the Administrative Agent to serve
as the Borrower's agent, solely for the purpose of this clause, to maintain
a register (the "Register") on which the Administrative Agent will record
each Lender's Commitment, the Loans made by each Lender and each repayment
in respect of the principal amount of the Loans, annexed to which the
Administrative Agent shall retain a copy of each Assignment delivered to
the Administrative Agent pursuant to Section 12.06. Failure to make any
recordation, or any error in such recordation, shall not affect the
Borrower's obligations under this Agreement or any Note.
19
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person in whose name a Loan is registered (or, if applicable, to
which a Note has been issued) as the owner thereof for the purposes of this
Agreement, notwithstanding notice or any provision herein to the contrary.
Any assignment or transfer of a Commitment or the Loans made pursuant
hereto shall be registered in the Register only upon delivery to the
Administrative Agent of an Assignment that has been executed by the
requisite parties pursuant to Section 12.06. No assignment or transfer of a
Lender's Commitment or Loans shall be effective unless such assignment or
transfer shall have been recorded in the Register by the Administrative
Agent as provided in this Section.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Committed Loans made by such Lender shall be
evidenced by a single promissory note of the Borrower in substantially the
form of Exhibit A hereto, dated (i) the Closing Date, or (ii) the effective
date of an Assignment pursuant to Section 12.06(b), payable to the order of
such Lender in a principal amount equal to its Commitment as in effect and
otherwise duly completed. The date, amount, Type, interest rate and
Interest Period of each Loan made by each Lender, and all payments made on
account of the principal thereof, shall be recorded by such Lender on its
books for its Notes, and, prior to any transfer, may be endorsed by such
Lender on a schedule attached to such Notes or any continuation thereof or
on any separate record maintained by such Lender. Failure to make any such
notation or to attach a schedule shall not affect any Lender's or the
Borrower's rights or obligations in respect of such Loans or affect the
validity of such transfer by any Lender of its Notes.
Section 2.08 Prepayments.
(a) The Borrower may prepay the Base Rate Loans upon not less than one
(1) Business Days' prior notice to the Administrative Agent (which shall
promptly notify the Lenders), which notice shall specify the prepayment
date (which shall be a Business Day) and the amount of the prepayment
(which shall be at least $1,000,000 or the remaining aggregate principal
balance outstanding on the Notes) and shall be irrevocable and effective
only upon receipt by the Administrative Agent, provided that interest on
the principal prepaid, accrued to the prepayment date, shall be paid on the
prepayment date. The Borrower may prepay Committed Loans which are
Eurodollar Loans upon not less than two (2) Business Days' prior notice to
the Administrative Agent (which shall promptly notify the Lenders) and
otherwise on the same condition as for Base Rate Loans and in addition such
prepayments of Eurodollar Loans shall be subject to the terms of Section
5.05 and, for each Eurodollar Loan, shall be in an amount equal to all of
such Eurodollar Loans for the Interest Period prepaid.
(b) If, after giving effect to any termination or reduction of the
Aggregate Commitments pursuant to Section 2.04(b), the outstanding
aggregate principal amount of (i) the Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the Aggregate Commitments, the
Borrower shall prepay the Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess, together
with interest on the principal amount paid accrued to the date of such
prepayment.
(c) Prepayments permitted or required under this Section 2.08 shall be
without premium or penalty, except as required under Section 5.05 for
prepayment of Eurodollar Loans.
20
Any prepayments on the Revolving Loans may be reborrowed subject to the
then effective Aggregate Commitments and the other provisions of this
Agreement.
Section 2.09 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending
Office for Loans of such Type.
Section 2.10 Change in Control. If a Change in Control shall occur
then (a) the Borrower will, within five Business Days after the occurrence
thereof, give each Lender notice thereof and shall describe in reasonable
detail the facts and circumstances giving rise thereto and (b) each Lender
may, by notice to the Borrower and the Administrative Agent given not later
than 45 days after the occurrence of such Change in Control, terminate its
Commitments, which shall be terminated upon the date specified in such
notice, which date shall be no earlier than the fifteenth day after such
notice; all principal, accrued and unpaid interest and all unpaid fees and
other amounts owing hereunder and under the Notes of such Lender shall be
due and payable on such date.
For purposes of this Section, a "Change in Control" shall be deemed to
occur (1) upon approval of the shareholders of the Borrower (or if such
approval is not required, upon the approval of the Borrower's Board of
Directors (the "Board") of (A) any consolidation or merger of the Borrower,
other than a consolidation or merger of the Borrower into or with a direct
or indirect wholly-owned Subsidiary, in which the Borrower is not the
continuing or surviving corporation or pursuant to which shares of common
stock of the Borrower would be converted into cash, securities or other
property other than a merger in which the holders of common stock of the
Borrower immediately prior to the merger will have the same proportionate
ownership of common stock of the surviving corporation immediately after
the merger, (B) any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all or substantially
all the assets of the Borrower, or (C) adoption of any plan or proposal for
the liquidation or dissolution of the Borrower, (2) when any person (as
defined in Section 3(a)(9) or 13(d) of the Exchange Act), other than the
Borrower or any subsidiary or employee benefit plan or trust maintained by
the Borrower, shall become the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of more than 15% of the
Borrower's common stock outstanding at the time, without the approval of
the Board, or (3) at any time during a period of two consecutive years,
individuals who at the beginning of such period constituted the Board shall
cease for any reason to constitute at least a majority thereof, unless the
election or the nomination for election by the Borrower's shareholders of
each new director during such two-year period was approved by a vote of at
least two-thirds of the directors then still in office who were directors
at the beginning of such two-year period.
Section 2.11 Extension of Maturity Date. So long as no Default has
occurred and is continuing, the Borrower may, by written notice delivered
no less than 30 days and no more than 90 days prior to the anniversary date
(but no more than twice over the term of this Agreement) of this Agreement
to the Administrative Agent (who shall promptly notify the Lenders),
request that the Lenders extend the Stated Maturity Date for a period of
one year from the then existing Stated Maturity Date. Each Lender shall, by
notice to the Administrative Agent and the Borrower given within 20 days
after receipt of such request, advise the Administrative Agent and the
Borrower of whether or not such Lender consents to such extension. Any
Lender who does not respond to the Administrative Agent and the Borrower
within such time period shall be
21
deemed to have advised the Administrative Agent and the Borrower that it
does not consent to such extension. Any extension of the Stated Maturity
Date shall require consent from Lenders representing at least 50% of the
Aggregate Commitments and shall be subject to conditions precedent as may
be determined by the Lenders at such time. If Lenders representing the
requisite percentage of the Aggregate Commitments approve the extension of
the then existing Stated Maturity Date, but a Lender does not provide
consent thereto, the Borrower shall, at its option, either (i) (A) on the
then existing Stated Maturity Date or (B) prior thereto by giving not less
than ten Business Days' prior irrevocable notice thereof to the
Administrative Agent on the date specified in that notice, repay to such
Lender its Percentage Share of the outstanding Loans (and reduce the
Aggregate Commitments by such Lender's Percentage Share of the Aggregate
Commitments), together with any fees, interest and other amounts accrued
(whether or not then due and payable) under this Agreement and payable to
such non-consenting Lender and all amounts incurred by such Lender under
Section 5.05 or any other provision of this Agreement up to such specified
date; or (ii) during the period following the deadline for Lenders to
respond to the Borrower's request and prior to then existing Stated
Maturity Date, find a replacement lender or lenders (provided that each
such replacement lender shall be an Eligible Assignee and shall be
consented to by the Administrative Agent and each Issuer (such consents not
to be unreasonably withheld) and notify the non-consenting Lender of same,
in which case such non-consenting Lender shall enter in an Assignment,
whereby it shall assign its rights and obligations under this Agreement and
any applicable Note to such replacement lender or lenders, provided that
(x) such assignment shall be without recourse, representation or warranty
(other than a representation of such non-consenting Lender that it is the
sole holder of the rights and obligations assigned pursuant to such
assignment and that such non-consenting Lender has not otherwise sold,
assigned, transferred or pledged any right, title or interest in and to
such assigned rights or obligations) and shall be on terms and conditions
reasonably satisfactory to such non-consenting Lender, (y) the purchase
price paid by such replacement lender or lenders shall be in the amount of
such non-consenting Lender's Percentage Share of the outstanding Loans plus
the fees, interest and other amounts accrued (whether or not then due and
payable) under this Agreement and payable to such non-consenting Lender and
(z) the Borrower shall have paid to such non-consenting Lender any amounts
incurred by such Lender under Section 5.05 or any other provision of this
Agreement.
Section 2.12 Increases in Aggregate Commitments. (a) Following the
Closing Date and prior to the Termination Date, the Borrower may from time
to time (but no more than once in any twelve month period and twice over
the term of this Agreement), request in writing to the Administrative Agent
that, on the terms and subject to the conditions contained in this
Agreement, the then existing Lenders (or, subject to the second sentence of
clause (b), one or more other Persons that will become Lenders as provided
in such clause (b)) provide additional Commitments. Any increase in the
Aggregate Commitments shall only be permitted if (i) both before and after
giving effect to such increase (x) the representations and warranties set
forth in this Agreement shall, in each case, be true and correct with the
same effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date) and (y) no Default has occurred and is
continuing or would result therefrom, (ii) the increase in the Aggregate
Commitments shall not exceed $100,000,000 in the aggregate, and (iii) the
Administrative Agent shall have received a certificate (x) certifying to
the matters set forth in clause (i) above and (y) demonstrating pro forma
compliance with the financial covenants set forth in Section 9.06, after
giving effect to the
22
incurrence of the additional amount of Commitments (as if the entire amount
of the Aggregate Commitments, as increased, was outstanding).
(b) Upon receipt of the notice referred to in clause (a), together
with a certificate (x) certifying to the matters set forth in clause (a)(i)
above and (y) demonstrating pro forma covenant compliance (assuming for the
purpose of such certificate the full utilization of the requested
additional Commitments), the Administrative Agent shall offer each existing
Lender the opportunity to provide additional Commitments in an amount equal
to its Percentage Share of the requested additional Commitments. If, within
20 Business Days after the Borrower has requested that the existing Lenders
provide additional Commitments pursuant to clause (a), the Borrower has not
received additional Commitments in an aggregate amount equal to that amount
of additional Commitments requested, then the Borrower may request the Lead
Arrangers to arrange for additional Commitments from Persons that would
qualify as Eligible Assignees, in an aggregate amount equal to such
deficiency (and with the fees to be paid to such Eligible Assignees to be
no greater than that to be paid to the existing Lenders providing
additional Commitments at such time). Any Lender who does not respond to
the Administrative Agent and the Borrower within such 20 Business Day time
period as to whether or not such Lender agrees to provide all or any
portion of such increase shall be deemed to have advised the Administrative
Agent and the Borrower that it will not provide any portion of such
increase. Nothing contained in this Agreement is intended to commit any
Lender or the Administrative Agent to provide any portion of such
additional Commitments.
(c) If and to the extent that within 20 Business Days after the
Borrower has requested that the existing Lenders provide additional
Commitments pursuant to clause (a) any Lenders and/or other lenders agree,
in their sole discretion, to provide any such additional Commitments,
(i)(A) the Aggregate Commitments shall be increased by the amount of the
additional Commitments agreed to be so provided, (B) the Percentage Share
of the respective Lenders in respect of the increased Aggregate Commitments
shall be proportionally adjusted (provided, that the amount equal to the
adjusted Percentage Share of a Lender multiplied by the Aggregate
Commitments as increased pursuant to clause (c)(i)(A) may not exceed the
amount equal to the Percentage Share of such Lender immediately prior to
any adjustment made pursuant to this clause (c)(i)(B) multiplied by the
Aggregate Commitments immediately prior to the corresponding increase
thereof pursuant to clause(c)(i)(A) without the consent of such Lender) and
such adjustment shall be recorded in the Register and (C) at such time and
in such manner as the Borrower and the Lead Arrangers shall agree, the
Lenders shall assign and assume outstanding Loans so as to cause the
amounts of such Loans held by each Lender to conform to its Percentage
Share of the Aggregate Commitments, (ii) the Borrower and each Lender
and/or lender that will provide Commitments pursuant to this Section 2.12
shall execute and deliver to the Administrative Agent an assumption
agreement and such other documentation, in form and substance satisfactory
to the Administrative Agent, as the Administrative Agent shall reasonably
specify to evidence such Commitments and (iii) the Borrower shall execute
and deliver any additional Notes, and deliver any other certificates,
consents or legal opinions as the Lead Arrangers may reasonably request.
23
ARTICLE III
Payments of Principal and Interest
Section 3.01 Repayment of Loans. The Borrower will pay to the
Administrative Agent, for the account of each Lender, the principal
payments required by this Article III. The aggregate principal amount of
the Notes outstanding on the Termination Date shall be due and payable on
such date.
Section 3.02. Maturity of Loans. Each Loan borrowed hereunder shall
mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Loan, but in any event
all Loans shall be due and payable in full on the Stated Maturity Date.
Section 3.03 Interest.
(a) Interest Rates. The Borrower will pay to the Administrative Agent,
for the account of each Lender, interest on the unpaid principal amount of
each Loan made by such Lender for the period commencing on the date such
Loan is made to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(i) if such a Loan is a Base Rate Loan, the Alternate Base Rate (as in
effect from time to time) plus the Applicable Margin, but in no event to
exceed the Highest Lawful Rate; and
(ii) if such a Loan is a Eurodollar Loan that is a Committed Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such Loan
plus the Applicable Margin, but in no event to exceed the Highest Lawful
Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the Borrower
will pay to the Administrative Agent, for the account of each Lender
interest at the applicable Post-Default Rate on any principal of any Loan
made by such Lender, and (to the fullest extent permitted by law) on any
other amount payable by the Borrower, hereunder or under any Note held by
such Lender to or for account of such Lender, for the period commencing on
the date of an Event of Default until the same is paid in full or all
Events of Default are cured or waived.
(c) Due Dates. Accrued interest on Base Rate Loans shall be payable on
the last day of the Interest Period applicable thereto, and accrued
interest on each Eurodollar Loan shall be payable on the last day of the
Interest Period therefor and, if such Interest Period is longer than three
months at three-month intervals following the first day of such Interest
Period, except that interest payable at the Post-Default Rate shall be
payable from time to time on demand and interest on any Eurodollar Loan
that is converted into a Base Rate Loan (pursuant to Section 5.04) shall be
payable on the date of conversion (but only to the extent so converted).
(d) Determination of Rates. Promptly after the determination of any
interest rate provided for herein or any change therein, the Administrative
Agent shall notify the Lenders to which such interest is payable and the
Borrower thereof. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall, except in cases of manifest error, be
final, conclusive and binding on the parties.
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ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by the
Borrower hereunder shall be initiated in Dollars, in immediately available
funds, to the Administrative Agent at such account as the Administrative
Agent shall specify by notice to the Borrower from time to time, not later
than 11:00 a.m. New York City time on the date on which such payments shall
become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Such
payments shall be made without (to the fullest extent permitted by
applicable law) defense, set-off or counterclaim. Each payment received by
the Administrative Agent under this Agreement on any Note for account of a
Lender shall be paid promptly to such Lender pro rata in accordance with
such Lender's Percentage Share in immediately available funds. Except as
provided in clause (ii) of the second paragraph of the definition of
"Interest Period," if the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day such
date shall be extended to the next succeeding Business Day and interest
shall be payable for any principal so extended for the period of such
extension. At the time of each payment to the Administrative Agent of any
principal of or interest on any borrowing, the Borrower shall notify the
Administrative Agent of the Loans to which such payment shall apply. In the
absence of such notice the Administrative Agent may specify the Loans to
which such payment shall apply, but to the extent possible such payment or
prepayment will be applied first to the Loans comprised of Base Rate Loans.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein each Lender agrees that: (a) each borrowing from the
Lenders under Section 2.01 and each continuation and conversion under
Section 2.02 shall be made from the Lenders pro rata in accordance with
their Percentage Share, each payment of the Standby Fee under Section
2.05(a) and amounts owing to the Lenders (including amounts paid in respect
of Reimbursement Obligations, to the extent actually participated in by a
Lender) shall be made for account of the Lenders pro rata in accordance
with their Percentage Shares and each termination or reduction of the
amount of the Aggregate Commitments under Section 2.04(a) shall be applied
to the Commitment of each Lender, pro rata according to the amounts of its
respective Percentage Share; (b) except during the continuance of an Event
of Default, each payment of principal of Committed Loans, the aggregate
Reimbursement Obligations then owing and the Cash Collaterization for
contingent liabilities under Letter of Outstandings by the Borrower shall
be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amount of the Type of Loans so paid as
designated pursuant to Section 4.01; (c) except during the continuance of
an Event of Default, each payment of interest on Committed Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance
with the amounts of interest due and payable to the respective Lenders on
the Type of Loans to which such interest payment is to be applied as
designated pursuant to Section 4.01; and (d) during the continuance of an
Event of Default each payment on the Loans shall be applied as provided in
Section 10.02(c).
Section 4.03 Computations. Interest on Eurodollar Loans and fees,
including any Letter of Credit fees, shall be computed on the basis of a
year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which such interest
25
is payable, unless such calculation would exceed the Highest Lawful Rate,
in which case interest shall be calculated on the per annum basis of a year
of 365 or 366 days, as the case may be. Interest on Base Rate Loans shall
be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such interest is payable.
Section 4.04 Non-receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the
Borrower prior to the date on which such notifying party is scheduled to
make payment to the Administrative Agent (in the case of a Lender) of the
proceeds of a Loan or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder
(such payment being herein called the "Required Payment"), which notice
shall be effective upon receipt, that it does not intend to make the
Required Payment to the Administrative Agent, the Administrative Agent may
assume that the Required Payment has been made and may, in reliance upon
such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date and, if such Lender or
the Borrower (as the case may be) has not in fact made the Required Payment
to the Administrative Agent, the recipient(s) of such payment shall, on
demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the
Administrative Agent until but excluding the date the Administrative Agent
recovers such amount at a rate per annum which, for any Lender as
recipient, will be equal to the Federal Funds Rate, and for the Borrower as
recipient, will be equal to the Base Rate plus the Applicable Margin.
Section 4.05 Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without limitation
of) any right of set-off, bankers' lien or counterclaim a Lender may
otherwise have, each Lender shall have the right and be entitled, at its
option, to offset balances held by it or by any of its Affiliates for
account of the Borrower or any Subsidiary at any of its offices, in Dollars
or in any other currency, against any principal of or interest on any of
such Lender's Loans, or any other amount payable to such Lender hereunder,
which is not paid when due (regardless of whether such balances are then
due to the Borrower), in which case it shall promptly notify the Borrower
and the Administrative Agent thereof, provided that such Lender's failure
to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of or interest
on any Loan made by it to the Borrower under this Agreement through the
exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise, and, as a result of such payment, such Lender shall
have received a greater percentage of the principal or interest (or
reimbursement) then due hereunder by the Borrower to such Lender than the
percentage received by any other Lenders, it shall promptly (i) notify the
Administrative Agent and each other Lender thereof and (ii) purchase from
such other Lenders participations in (or, if and to the extent specified by
such Lender, direct interests in) the Loans made by such other Lenders (or
in interest due thereon, as the case may be) in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that
all the Lenders shall share the benefit of such excess payment (net of any
expenses which may be incurred by such Lender in obtaining or preserving
such excess
26
payment) pro rata in accordance with the unpaid principal and/or interest
on the Loans held by each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans made by other Lenders (or
in interest due thereon, as the case may be) may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in
the amount of such participation. Nothing contained herein shall require
any Lender to exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Borrower. If
under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a set-off to which this Section
4.05 applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section 4.05 to share the
benefits of any recovery on such secured claim.
Section 4.06 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 4.01, free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on their income and franchise or
similar taxes imposed on them, by (i) any jurisdiction (or political
subdivision thereof) of which the Administrative Agent or such Lender, as
the case may be, is a citizen or resident or in which such Lender has an
Applicable Lending Office, (ii) the jurisdiction (or any political
subdivision thereof) in which the Administrative Agent or such Lender is
organized, or (iii) any jurisdiction (or political subdivision thereof) in
which such Lender, the Administrative Agent is presently doing business in
which taxes are imposed solely as a result of doing business in such
jurisdiction (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Lenders or the
Administrative Agent, (A) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.06)
such Lender, the Administrative Agent (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been
made, (B) the Borrower shall make such deductions and (C) the Borrower
shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law.
(b) Other Taxes. In addition, to the fullest extent permitted by
applicable law, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
or any Assignment (hereinafter referred to as "Other Taxes").
(c) Indemnification. To the fullest extent permitted by applicable
law, the Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes and Other
27
Taxes (including, but not limited to, any Taxes or Other Taxes imposed by
any Governmental Authority on amounts payable under this Section 4.06) paid
by such Lender or the Administrative Agent (on their behalf or on behalf of
any Lender), as the case may be, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally asserted unless
the payment of such Taxes was not correctly or legally asserted and such
Lender's or Administrative Agent's payment of such Taxes or Other Taxes was
the result of its gross negligence or willful misconduct. Any payment
pursuant to such indemnification shall be made within thirty (30) days
after the date any Lender, the Administrative Agent, as the case may be,
makes written demand therefor. If any Lender or the Administrative Agent
receives a refund or credit in respect of any Taxes or Other Taxes for
which such Lender, the Administrative Agent has received payment from the
Borrower it shall promptly notify the Borrower of such refund or credit and
shall, if no Default has occurred and is continuing, within thirty (30)
days after receipt of a request by the Borrower (or promptly upon receipt,
if the Borrower has requested application for such refund or credit
pursuant hereto), pay an amount equal to such refund or credit to the
Borrower without interest (but with any interest so refunded or credited),
provided that the Borrower, upon the request of such Lender, the
Administrative Agent, agrees to return such refund or credit (plus
penalties, interest or other charges) to such Lender or the Administrative
Agent in the event such Lender or the Administrative Agent is required to
repay such refund or credit. Nothing in this Section 4.06 (c) shall oblige
any Lender to disclose to the Borrower or any other person any information
regarding its tax affairs or tax computations or interfere with the right
of any Lender to arrange its tax affairs in whatever manner it thinks fit.
(d) Lender Statements.
(i) Each Lender represents that it is either (1) a corporation or
banking association organized under the laws of the United States of
America or any state thereof or (2) it is entitled to complete exemption
from United States withholding tax imposed on or with respect to any
payments, including fees, to be made to it pursuant to this Agreement (A)
under an applicable provision of a tax convention to which the United
States of America is a party or (B) because it is acting through a branch,
agency or office in the United States of America and any payment to be
received by it hereunder is effectively connected with a trade or business
in the United States of America. Each Lender that is not a corporation or
banking association organized under the laws of the United States of
America or any state thereof agrees to provide to the Borrower and the
Administrative Agent on the Closing Date, or on the date of its delivery of
the Assignment pursuant to which it becomes a Lender, and at such other
times as required by United States law or as the Borrower or the
Administrative Agent shall reasonably request, two accurate and complete
original signed copies of either (A) Internal Revenue Service Form W-8ECI
(or successor form) certifying that all payments to be made to it hereunder
will be effectively connected to a United States trade or business (the
"Form W-8ECI Certification") or (B) Internal Revenue Service Form W-8BEN
(or successor form) certifying that it is entitled to the benefit of a
provision of a tax convention to which the United States of America is a
party which completely exempts from United States withholding tax all
payments to be made to it hereunder (the "Form W-8BEN Certification"). In
addition, each Lender agrees that if it previously filed a Form W-8ECI
Certification, it will deliver to the Borrower and the Administrative Agent
a new Form W-8ECI Certification prior to the first payment date occurring
in each of its subsequent taxable years; and if it previously filed a Form
W-8BEN Certification,
28
it will deliver to the Borrower and the Administrative Agent a new
certification prior to the first payment date falling in the third year
following the previous filing of such certification. Each Lender also
agrees to deliver to the Borrower and the Administrative Agent such other
or supplemental forms as may at any time be required as a result of changes
in applicable law or regulation in order to confirm or maintain in effect
its entitlement to exemption from United States withholding tax on any
payments hereunder, provided that the circumstances of such Lender at the
relevant time and applicable laws permit it to do so. If a Lender
determines, as a result of any change in either (i) a Governmental
Requirement or (ii) its circumstances, that it is unable to submit any form
or certificate that it is obligated to submit pursuant to this Section
4.06, or that it is required to withdraw or cancel any such form or
certificate previously submitted, it shall promptly notify the Borrower and
the Administrative Agent of such fact; and, if as a result of such change
the Borrower is required to pay or reimburse such Lender for any United
States withholding tax with respect to any payments, including fees, made
pursuant to this Agreement, the Borrower shall have the right with
assistance of the Administrative Agent, to seek a mutually acceptable
Lender or Lenders to purchase the Notes and assume the Commitments of such
Lender. If a Lender is organized under the laws of a jurisdiction outside
the United States of America, unless the Borrower and the Administrative
Agent have received a Form W-8BEN Certification or Form W-8ECI
Certification satisfactory to them indicating that all payments to be made
to such Lender hereunder are not subject to United States withholding tax,
the Borrower shall withhold taxes from such payments at the applicable
statutory rate. Each Lender agrees to indemnify and hold harmless the
Borrower or Administrative Agent, as applicable, from any United States
taxes, penalties, interest and other expenses, costs and losses incurred or
payable by (i) the Administrative Agent as a result of such Lender's
failure to submit any form or certificate that it is required to provide
pursuant to this Section 4.06 or (ii) the Borrower or the Administrative
Agent as a result of their reliance on any such form or certificate which
such Lender has provided to them pursuant to this Section 4.06.
(ii) For any period with respect to which a Lender has failed to
provide the Borrower with the form required pursuant to this Section 4.06,
if any, (other than if such failure is due to a change in a Governmental
Requirement occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 4.06 with respect to taxes imposed by the
United States which taxes would not have been imposed but for such failure
to provide such forms; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax
becomes subject to taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such taxes.
(iii) Any Lender claiming any additional amounts payable pursuant to
this Section 4.06 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by
the Borrower or the Administrative Agent or to change the jurisdiction of
its Applicable Lending Office or to contest any tax imposed if the making
of such a filing or change or contesting such tax would avoid the need for
or reduce the amount of any such additional amounts that may thereafter
accrue and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
29
(iv) Each of the Lenders represents that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
(v) Each of the Lenders represents that it is its present intention to
make its Loans and to acquire the Notes to its order for its own account as
a result of making Loans in the ordinary course of its commercial banking
business and not with a view to the public distribution or public sale
thereof; subject, nonetheless, to any legal or administrative requirement
that the disposition of such Lender's property at all times be within its
control.
ARTICLE V
Capital Adequacy
Section 5.01 Additional Costs.
(a) Eurodollar Regulations, etc. The Borrower shall pay directly to
each Lender from time to time such amounts as such Lender may determine to
be necessary to compensate such Lender for any costs which it determines
are attributable to its making or maintaining of any Eurodollar Loans or
its obligation to make any such Loans or any reduction in any amount
receivable by such Lender hereunder in respect of any of such Loans or such
obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory
Change which: (i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or any Note in respect of any of such
Loans (other than taxes imposed on the overall net income of such Lender or
of its Applicable Lending Office for any of such Loans by the jurisdiction
in which such Lender has its principal office or Applicable Lending Office;
or (ii) imposes or modifies any reserve, special deposit, minimum capital,
capital ratio or similar requirements relating to any extensions of credit
or other assets of, or any deposits with or other liabilities of such
Lender, or the Commitment or Loans of such Lender or the Eurodollar
interbank market; or (iii) imposes any other condition affecting this
Agreement or any Note (or any of such extensions of credit or liabilities)
or such Lender's Commitment or Loans. Each Lender will notify the
Administrative Agent and the Borrower of any event occurring after the
Closing Date which will entitle such Lender to compensation pursuant to
this Section 5.01 as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation, and will designate a
different Applicable Lending Office for the Loans of such Lender affected
by such event if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, provided that such Lender shall
have no obligation to so designate an Applicable Lending Office located in
the United States. If any Lender requests compensation from the Borrower
under this Section 5.01(a), the Borrower may, by notice to such Lender,
suspend the obligation of such Lender to make additional Loans of the Type
with respect to which such compensation is requested until the Regulatory
Change giving rise to such request ceases to be in effect (in which case
the provisions of Section 5.04 shall be applicable).
(b) Regulatory Change. Without limiting the effect of the provisions
of Section 5.01(a), in the event that, by reason of any Regulatory Change
or any other circumstances arising
30
after the Closing Date affecting such Lender, the Eurodollar interbank
market or such Lender's position in such market, any Lender either (i)
incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other
liabilities of such Lender which includes deposits by reference to which
the interest rate on Eurodollar Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such
Lender which includes Eurodollar Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets
which it may hold, then, if such Lender so elects by notice to the
Borrower, the obligation of such Lender to make additional Eurodollar Loans
shall be suspended until such Regulatory Change or other circumstances
ceases to be in effect (in which case the provisions of Section 5.04 shall
be applicable).
(c) Capital Adequacy. Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the Borrower
shall pay directly to any Lender from time to time on request such amounts
as such Lender may reasonably determine to be necessary to compensate such
Lender or its parent or holding company for any costs which it determines
are attributable to the maintenance by such Lender or its parent or holding
company (or any Applicable Lending Office), pursuant to any Governmental
Requirement following any Regulatory Change, of capital in respect of its
Commitment, its Notes, its Loans or its Letters of Credit participated in,
such compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender or its
parent or holding company (or any Applicable Lending Office) to a level
below that which such Lender or its parent or holding company (or any
Applicable Lending Office) could have achieved but for such Governmental
Requirement. Such Lender will notify the Borrower that it is entitled to
compensation pursuant to this Section 5.01(c) as promptly as practicable
after it determines to request such compensation.
(d) Compensation Procedure. Any Lender notifying the Borrower of the
incurrence of Additional Costs under this Section 5.01 shall in such notice
to the Borrower and the Administrative Agent set forth in reasonable detail
the basis and amount of its request for compensation. Determinations and
allocations by each Lender for purposes of this Section 5.01 of the effect
of any Regulatory Change pursuant to Section 5.01(a) or (b), or of the
effect of capital maintained pursuant to Section 5.01(c), on its costs or
rate of return of maintaining Loans or its obligation to make Loans, or on
amounts receivable by it in respect of Loans, and of the amounts required
to compensate such Lender under this Section 5.01, shall, absent manifest
error, be conclusive and binding for all purposes, provided that such
determinations and allocations are made on a reasonable basis. Any request
for additional compensation under this Section 5.01 shall be paid by the
Borrower within thirty (30) days of the receipt by the Borrower of the
notice described in this Section 5.01(d).
(e) Replacement of Bank. If any Lender has demanded compensation under
Section 5.01(c), the Borrower shall have the right (so long as no Default
or Event of Default shall be in existence) with the assistance of the
Administrative Agent, to seek a Lender or Lenders mutually acceptable to
the Borrower and the Administrative Agent to purchase the Notes and assume
the Commitments of such Lender.
31
Section 5.02 Limitation on Eurodollar Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any
Eurodollar Rate for any Interest Period:
(a) the Administrative Agent determines (which determination shall be
conclusive, absent manifest error) that quotations of interest rates for
the relevant deposits referred to in the definition of "Eurodollar Rate,"
as the case may be, in Section 1.02 are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) the Administrative Agent determines (which determination shall be
conclusive, absent manifest error) that the relevant rates of interest
referred to in the definition of "Eurodollar Rate," as the case may be, in
Section 1.02 upon the basis of which the rate of interest for Eurodollar
Loans for such Interest Period is to be determined are not sufficient to
adequately cover the cost to the Lenders of making or maintaining
Eurodollar Loans;
then the Administrative Agent shall give the Borrower prompt notice
thereof, and so long as such condition remains in effect, the Lenders shall
be under no obligation to make additional Eurodollar Loans.
Section 5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain
Eurodollar Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and such Lender's obligation to make Eurodollar Loans
shall be suspended until such time as such Lender may again make and
maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
Section 5.04 Base Rate Loans. If the obligation of any Lender to make
Eurodollar Loans shall be suspended pursuant to Sections 5.01, 5.02 or 5.03
("Affected Loans"), all Affected Loans which would otherwise be made by
such Lender shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01(b) or Section 5.03 has occurred and such Lender
so requests by notice to the Borrower, all Affected Loans of such Lender
then outstanding shall be automatically converted into Base Rate Loans on
the date specified by such Lender in such notice) and, to the extent that
Affected Loans are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Lender's
Affected Loans shall be applied instead to its Base Rate Loans.
Section 5.05 Compensation. The Borrower shall pay to each Lender
within thirty (30) days of receipt of written request of such Lender (which
request shall set forth, in reasonable detail, the basis for requesting
such amounts and which shall be conclusive and binding, absent manifest
error, for all purposes provided that such determinations are made on a
reasonable basis), such amount or amounts as shall compensate it for any
loss, cost, expense or liability which such Lender determines are
attributable to:
(a) any payment, prepayment or conversion of a Eurodollar Loan
properly made by such Lender or the Borrower for any reason (including,
without limitation, the acceleration of the
32
Loans pursuant to Section 10.02) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including but not
limited to, the failure of any of the conditions precedent specified in
Article VI to be satisfied) to borrow, continue or convert a Eurodollar
Loan from such Lender on the date for such borrowing, continuation or
conversion specified in the relevant notice given pursuant to Section
2.02(c).
Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount so paid, prepaid
or converted or not borrowed for the period from the date of such payment,
prepayment or conversion or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date
specified for such borrowing) at the applicable rate of interest for such
Loan provided for herein over (ii) the interest component of the amount
such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount
and with maturities comparable to such period (as reasonably determined by
such Lender).
ARTICLE VI
Conditions Precedent
Section 6.01 Closing and Initial Funding. The obligation of the
Lenders to make the Initial Funding or any Issuer to issue any Letters of
Credit on the Closing Date (if any) is subject to the following: (a) the
receipt by the Administrative Agent, the Lead Arrangers, the Lenders and
the Issuers of all fees payable pursuant to Section 2.05 and all fees
payable pursuant to the Fee Letters; (b) that no material adverse change
shall have occurred since September 30, 2006 in the financial position or
the results of operation of the Borrower and its Subsidiaries taken as a
whole or the facts and information regarding the Borrower and its
Subsidiaries represented to the Lenders prior to the Closing Date and the
satisfaction of the other conditions provided in this Section 6.01, (c) the
termination on or prior to the Closing Date of the Existing Agreement and
the repayment by the Borrower of all amounts due and owing to the Existing
Lenders under the Existing Agreement, and (d) the receipt by the
Administrative Agent of the following documents, each of which shall be
reasonably satisfactory to the Administrative Agent in form and substance:
(i) Counterparts of this Agreement, duly executed and delivered by the
Borrower, each Lender and the Administrative Agent.
(ii) A certificate of the Secretary or an Assistant Secretary of the
Borrower setting forth (A) resolutions of its board of directors with
respect to the authorization of the Borrower to execute and deliver this
Agreement and the Notes and to enter into the transactions contemplated in
those documents, (B) the officers of the Borrower (I) who are authorized to
sign this Agreement and the Notes and (II) who will, until replaced by
another officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with this Agreement and the transactions
contemplated hereby, (C) specimen signatures of the Authorized Officers,
and (D) the articles or
33
certificate of incorporation and bylaws of the Borrower, certified as being
true and complete. The Administrative Agent and the Lenders may
conclusively rely on such certificate until the Administrative Agent
receives notice in writing from the Borrower to the contrary.
(iii) Certificates of the Secretary of State of the Commonwealth of
Kentucky with respect to the existence, qualification and good standing of
the Borrower.
(iv) A certificate dated as of the Closing Date, duly executed and
delivered by an Authorized Officer of the Borrower, in form and substance
satisfactory to the Administrative Agent.
(v) Notes, for the account of each Lender that has requested a Note,
duly executed and delivered by an Authorized Officer of the Borrower.
(vi) An opinion of Borrower's senior in-house counsel, at or above the
Senior Counsel level or other counsel for the Borrower reasonably
satisfactory to the Administrative Agent, substantially in the form of
Exhibit D hereto.
(vii) Such other documents as the Administrative Agent, the Lead
Arrangers or any Lender or special counsel to the Administrative Agent may
reasonably request.
Section 6.02 Initial and Subsequent Loans and Letters of Credit. The
obligation of the Lenders to make any Loans or issue any Letters of Credit
to the Borrower upon the occasion of each borrowing hereunder (including
the Initial Funding and any continuation and conversion under Section
2.02(d) or (e)) is subject to the further conditions precedent that, as of
the date of such Loans and after giving effect thereto: (a) no Default
shall have occurred and be continuing; (b) no Material Adverse Effect shall
have occurred; and (c) the representations and warranties made by the
Borrower in Article VII shall be true and correct on and as of the date of
the making of such Loans or the issuance of any Letter of Credit with the
same force and effect as if made on and as of such date and following such
new borrowing, except to (I) the extent such representations and warranties
are expressly limited to an earlier date, (II) the Majority Lenders
expressly consent in writing to the contrary and (III) provided, that with
respect to a new Loan or Letter of Credit pursuant to a continuation or
conversion under Section 2.02(d) or (e), it shall not be a condition
precedent to such Loan that Section 7.02 or 7.03 be true and correct as of
the date of such Loan or Letter of Credit. Each request for a borrowing and
each Issuance Request by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in the preceding
sentence (both as of the date of such notice and, unless the Borrower
otherwise notifies the Administrative Agent prior to the date of and
immediately following such borrowing or issuance of Letter of Credit as of
the date thereof).
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Lenders and each Issuer that (each representation and warranty herein is
given as of the Effective Date and shall be deemed repeated and reaffirmed
on the dates of each borrowing as provided in Section 6.02):
34
Section 7.01 Existence. The Borrower: (a) is duly organized or formed,
legally existing and in good standing, if applicable, under the laws of the
jurisdiction of its formation; (b) has all requisite power, and has all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure so to qualify would have a
Material Adverse Effect.
Section 7.02 Financial Condition. The audited Consolidated balance
sheet of the Borrower and its Subsidiaries as at September 30, 2006 and the
related Consolidated statements of income, common stockholders' equity and
cash flows of the Borrower and its Subsidiaries for the fiscal year ended
on said date, with the opinion thereon of Ernst & Young LLP heretofore
furnished to each of the Lenders on Form 10-K, and the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2006 and the related Consolidated statements of income, common
stockholders' equity and cash flows of the Borrower and its Subsidiaries
for the three month period ended on such date heretofore furnished to the
Administrative Agent on Form 10-Q, fairly present the Consolidated
financial position of the Borrower and its Subsidiaries as at said dates
and the Consolidated results of their operations for the fiscal year and
the three month periods ended on said dates, all in accordance with GAAP.
Since September 30, 2006, there has been no Material Adverse Effect.
Section 7.03 Litigation. Except as disclosed to the Lenders in
Schedule 7.03 hereto or in a Form 10-K, Form 10-Q or Form 8-K delivered by
the Borrower pursuant to Section 8.01(d) hereof, there is no litigation,
legal, administrative or arbitral proceeding, investigation or other action
of any nature pending or, to the knowledge of the Borrower threatened
against or affecting the Borrower or any Subsidiary the probable outcome of
which would adversely affect the validity or enforceability of this
Agreement or any of the Notes, or would have a Material Adverse Effect.
Section 7.04 No Breach. Neither the execution and delivery of this
Agreement and the Notes, nor compliance with the terms and provisions
hereof will conflict with or result in a breach of, or require any consent
which has not been obtained as of the Effective Date under, the respective
Third Restated Articles of Incorporation or by-laws of the Borrower, as
amended, or any Governmental Requirement or any indenture or loan or credit
agreement or any other material agreement or instrument to which the
Borrower is a party or by which it is bound or to which it or its
Properties are subject, or constitute a default under any such indenture,
agreement or instrument which would materially adversely affect the ability
of the Borrower to perform its obligations under this Agreement or result
in the creation or imposition of any Lien upon any of the revenues or
assets of the Borrower or any Subsidiary pursuant to the terms of any such
agreement or instrument.
Section 7.05 Authority. The Borrower has all necessary power and
authority to execute, deliver and perform its obligations hereunder and
under the Notes; and the execution, delivery and performance by the
Borrower of this Agreement and the Notes, have been duly authorized by all
necessary action on its part; and this Agreement and the Notes constitute
the legal, valid and binding obligations of the Borrower, enforceable in
accordance with their terms
35
except as limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application relating to or affecting
creditor's rights and general principles of equity.
Section 7.06 Approvals. Except as have been obtained, no
authorizations, approvals or consents of, and no filings or registrations
with, any Governmental Authority are necessary for the execution, delivery
or performance by the Borrower of this Agreement or the Notes or for the
validity or enforceability thereof.
Section 7.07 Use of Loans and Letters of Credit. The proceeds of the
Loans and the Letters of Credit shall be used to repay the indebtedness of
the Borrower under the Existing Agreement and for general working capital,
capital expenditures and other general corporate purposes, including
without limitation, to support insurance requirements. The Borrower is not
engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock (within the meaning of
Regulation U or X of the Board of Governors of the Federal Reserve System),
as they may be amended or interpreted from time to time.
Section 7.08 ERISA.
(a) The Borrower, each Subsidiary and each ERISA Affiliate have
complied in all material respects with ERISA and, where applicable, the
Code regarding each Plan.
(b) Each Plan is, and has been, maintained in substantial compliance
with ERISA and, where applicable, the Code.
(c) No act, omission or transaction has occurred which could result in
imposition on the Borrower, any Subsidiary or any ERISA Affiliate (whether
directly or indirectly) of (i) either a civil penalty assessed pursuant to
section 502(c), (i) or (l) of ERISA or a tax imposed pursuant to Chapter 43
of Subtitle D of the Code or (ii) breach of fiduciary duty liability
damages under section 409 of ERISA, either of which would have a Material
Adverse Effect.
(d) No liability to the PBGC (other than for the payment of current
premiums which are not past due) by the Borrower, any Subsidiary or any
ERISA Affiliate has been or is expected by the Borrower, any Subsidiary or
any ERISA Affiliate to be incurred with respect to any Plan. No ERISA Event
with respect to any Plan has occurred.
(e) Full payment when due has been made of all amounts which the
Borrower, any Subsidiary or any ERISA Affiliate is required under the terms
of each Plan or applicable law to have paid as contributions to such Plan,
and no accumulated funding deficiency (as defined in section 302 of ERISA
and section 412 of the Code), whether or not waived, exists with respect to
any Plan.
(f) No Pension Plan has any Unfunded Pension Liability.
(g) None of the Borrower, any Subsidiary or any ERISA Affiliate
sponsors, maintains, or contributes to an employee welfare benefit plan, as
defined in section 3(1) of ERISA, including, without limitation, any such
plan maintained to provide benefits to former
36
employees of such entities, that may not be terminated by the Borrower, a
Subsidiary or any ERISA Affiliate in its sole discretion at any time
without any material liability.
(h) None of the Borrower, any current Subsidiary or any ERISA
Affiliate sponsors, maintains or contributes to, or has any liability or
contingent liability with respect to, or has at any time in the six-year
period preceding the date of this Agreement sponsored, maintained or
contributed to, any Multiemployer Plan other than those listed on Schedule
7.08 attached hereto. Prior to the execution of this Agreement, the
Borrower has furnished to the Majority Lenders with respect to each
Multiemployer Plan listed on Schedule 7.08 hereto (i) a true and
substantially complete listing of the contributions required to be made by
the Borrower, the Subsidiaries and all ERISA Affiliates to such
Multiemployer Plan for each of the five calendar years preceding the date
of this Agreement, and (ii) true and complete copies of all information
which has been provided to any of the Borrower, a Subsidiary or any ERISA
Affiliate regarding assessed or potential withdrawal liability under any
such Multiemployer Plan.
Section 7.09 Taxes. Except as set out in Schedule 7.09, each of the
Borrower and the Subsidiaries has filed all United States Federal income
tax returns and all other material tax returns which are required to be
filed by them and, except for taxes which are being contested in good faith
through appropriate proceedings, have paid all taxes due on such returns or
pursuant to any assessment received by the Borrower or any Subsidiary. The
charges, accruals and reserves on the books of the Borrower and the
Subsidiaries in respect of taxes are, in the opinion of the Borrower,
adequate. No tax lien has been filed and, to the knowledge of the Borrower,
no claim is being asserted with respect to any tax, fee or other charge,
except for those for which adequate reserves have been provided.
Section 7.10 No Material Misstatements. No written information,
statement, exhibit, certificate, document or report furnished to the
Administrative Agent, the Lenders and each Issuer (or any of them) by the
Borrower in connection with the negotiation of this Agreement contained any
material misstatement of fact or omitted to state a material fact or any
fact necessary to make the statement contained therein not materially
misleading in the light of the circumstances in which made and with respect
to the Borrower and the Subsidiaries taken as a whole. There is no fact
peculiar to the Borrower or any Substantial Subsidiary which has a Material
Adverse Effect or in the future is reasonably likely to have (so far as the
Borrower can now foresee) a Material Adverse Effect and which has not been
set forth in this Agreement or the other documents, certificates and
statements furnished to the Administrative Agent by or on behalf of the
Borrower or any Subsidiary prior to, or on, the Effective Date in
connection with the transactions contemplated hereby.
Section 7.11 Investment Company Act. The Borrower is not an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
Section 7.12 Public Utility Holding Company Act. The Borrower is not 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," or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
37
Section 7.13 Defaults. No Default hereunder has occurred and is
continuing.
Section 7.14 Environmental Matters. Except (a) as provided in Schedule
7.14 or (b) as would not have a Material Adverse Effect (or with respect to
(iii), (iv) and (v) below, where the failure to take such actions would not
have a Material Adverse Effect):
(i) Neither any Property of the Borrower or any Subsidiary nor the
operations conducted thereon violate any order or requirement of any court
or Governmental Authority or any Environmental Laws;
(ii) Without limitation of clause (a) above, no Property of the
Borrower or any Subsidiary nor the operations currently conducted thereon
or, to the best knowledge of the Borrower, by any prior owner or operator
of such Property or operation, are in violation of or subject to any known
existing, pending or threatened action, suit, investigation, inquiry or
proceeding by or before any court or Governmental Authority or to any
remedial obligations under Environmental Laws;
(iii) To the best knowledge of the Borrower, all notices, permits,
licenses or similar authorizations, if any, required to be obtained or
filed in connection with the operation or use of any and all Property of
the Borrower and each Subsidiary, including without limitation past or
present treatment, storage, disposal or release of a hazardous substance or
solid waste into the environment, have been duly obtained or filed, and the
Borrower and each Subsidiary are in compliance with the terms and
conditions of all such notices, permits, licenses and similar
authorizations;
(iv) All hazardous substances and solid waste, if any, generated at
any and all Property of the Borrower or any Subsidiary have in the past
been transported, treated and disposed of in accordance with the applicable
Environmental Laws, and, to the best knowledge of the Borrower, all such
transport carriers and treatment and disposal facilities have been and are
operating in compliance with Environmental Laws and are not the subject of
any known existing, pending or threatened action, investigation or inquiry
by any Governmental Authority in connection with any Environmental Laws;
(v) To the extent applicable, all Property of the Borrower and each
Subsidiary currently satisfies all applicable design, operation, and
equipment requirements imposed by the OPA or scheduled as of the Effective
Date to be imposed by OPA during the term of this Agreement, and the
Borrower does not have any reason to believe that such Property, to the
extent subject to OPA, will not be able to maintain compliance with the OPA
requirements during the term of this Agreement; and
(vi) Neither the Borrower nor any Subsidiary has any known contingent
liability in connection with any release of any oil, hazardous substance or
solid waste into the environment. For purposes of this clause (vi), a
liability shall be deemed contingent when it rises to a level where it
should be reported in footnotes or otherwise in financials prepared in
accordance with GAAP or in appropriate filings with the SEC.
Section 7.15 Insurance. The Borrower and each Subsidiary maintains
adequate insurance and/or self insurance coverage in at least such amounts
and against at least such risks
38
(but including in any event public liability) as are usually insured
against by companies engaged in the same or a similar business, similarly
situated, for the assets and operations of the Borrower and each Subsidiary
including, without limitation, environmental risk insurance to the extent
reasonably necessary.
Section 7.16 Reportable Transaction. Neither the Borrower nor any of
its Subsidiaries expects to identify one or more of the Loans under this
Agreement as a "reportable transaction" on IRS Form 8886 filed with the
U.S. tax returns for purposes of Section 6011, 6111 or 6112 of the Code or
the Treasury Regulations promulgated thereunder.
ARTICLE VIII
Affirmative Covenants
The Borrower covenants and agrees that, so long as any of the
Commitments are in effect and until payment in full of all Indebtedness
hereunder, all interest thereon and all other amounts payable by the
Borrower hereunder:
Section 8.01 Reporting Requirements. The Borrower shall deliver, or
shall cause to be delivered, to the Administrative Agent, the Lenders and
each Issuer:
(a) Annual Financial Statements. Promptly upon its becoming available
and in any event within 90 days after the end of each fiscal year of the
Borrower, financial statements prepared in accordance with GAAP. The annual
statements shall be audited by independent auditors of recognized national
standing acceptable to the Administrative Agent and shall include a report
of the independent auditors stating that in their opinion such financial
statements present fairly, in all material respects, the Consolidated
financial position of the Borrower and its Consolidated subsidiaries and
the Consolidated results of their operations and their Consolidated cash
flows for the respective years, in conformity with accounting principles
generally accepted in the United States. In addition, such opinion shall
not contain a "going concern" or like qualification or exception.
(b) Quarterly Financial Statements. Promptly upon its becoming
available and in any event within 50 days after the end of each of the
first three fiscal quarterly periods of each fiscal year of the Borrower,
Consolidated statements of income, common stockholders' equity and cash
flows of the Borrower and its Consolidated Subsidiaries for the period from
the beginning of the respective fiscal year to the end of such period, and
the related Consolidated balance sheets as at the end of such period, and
setting forth in each case in comparative form the corresponding figures
for the corresponding period in the preceding fiscal year, accompanied by
the certificate of a Financial Officer, which certificate shall state that
said financial statements fairly present the Consolidated financial
position and results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP, as at the end of, and
for, such period (subject to normal year-end audit adjustments).
(c) Notice of Default, Etc. Promptly after the Borrower knows that any
Default or any Material Adverse Effect has occurred, a notice of such
Default or Material Adverse Effect, describing the same in reasonable
detail and the action the Borrower proposes to take with respect thereto.
39
(d) SEC Filings, Etc. Promptly upon its becoming available, (i) each
Form 10-K, Form 10-Q and Form 8-K, filed by the Borrower with any
securities exchange or the SEC or any successor agency and (ii) notice to
each Lender of the availability of each registration statement (other than
registration statements on Form S-8 or Form S-3 relating to employee
benefit or stock option plans) and promptly upon receiving a written
request therefor, the Borrower will furnish copies of such registration
statement to the Lender submitting the request.
(e) Environmental Matters. Notice of any threatened material action,
investigation or inquiry by any Governmental Authority of which the
Borrower has knowledge, in connection with any Environmental Laws, under
circumstances where such threatened action, investigation or inquiry could
result in a Material Adverse Effect.
(f) Other Matters. From time to time such other information regarding
the business, affairs or financial condition of the Borrower or any
Subsidiary (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender, any Issuer or the Administrative Agent may reasonably request.
The Borrower will furnish to the Administrative Agent, the Lenders and each
Issuer, at the time it furnishes each set of financial statements pursuant
to paragraph (a) or (b) above, a certificate substantially in the form of
Exhibit C hereto executed by a Financial Officer certifying as to the
matters set forth therein and stating that such financial statements have
been prepared in accordance with GAAP and that he has no knowledge that a
Default has occurred and is continuing (or, if any Default has occurred and
is continuing, describing the same in reasonable detail and the action the
Borrower proposes to take with respect thereto).
Section 8.02 Litigation. The Borrower shall promptly, after the
commencement thereof, give to the Administrative Agent, the Lenders and
each Issuer notice of all litigation, legal, administrative or arbitral
proceedings investigation or other action of any nature of this type
described in Section 7.03 hereof. The Borrower will, and will cause each of
the Subsidiaries to, promptly notify the Administrative Agent, each of the
Lenders and each Issuer of any judgment affecting any Property of the
Borrower or any Subsidiary if the value of the judgment affecting such
Property shall exceed $50,000,000. Upon request of the Administrative
Agent, any Lender or any Issuer the Borrower will furnish to the
Administrative Agent and such Lender or such Issuer a list of any Liens on
Property of the Borrower or any Subsidiary securing an obligation of in
excess of $25,000,000.
Section 8.03 Maintenance, Etc.
(a) The Borrower shall and shall use its best efforts to cause each
Subsidiary to: preserve and maintain its existence and all of its material
rights, privileges and franchises (provided, however, that nothing herein
contained shall prevent any merger or consolidation permitted by Section
9.03) pay and discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its Property
prior to the date on which penalties attach thereto, except for any such
tax, assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate reserves
are being maintained or which is not a material liability of the Borrower
or any
40
Substantial Subsidiary in relation to the Consolidated financial condition
of the Borrower and Subsidiaries taken as a whole.
(b) The Borrower will and will cause each Subsidiary to operate its
Properties or cause such Properties to be operated in a careful and
efficient manner in accordance with the practices of the industry and in
material respects in compliance with all material contracts and agreements
and with all applicable Governmental Requirements except where the failure
to do so would not reasonably be expected to result in a Material Adverse
Effect.
(c) The Borrower will keep or cause to be kept all property of a
character usually insured by Persons engaged in the same or a similar
business, similarly situated against loss or damage of all kinds and in
amounts customarily insured against by such Persons and carry such other
insurance as is usually carried by such Persons including, without
limitation, environmental risk insurance, through self insurance or with
financially sound and reputable insurers.
Section 8.04 Further Assurances. The Borrower will and will use its
best efforts to cause each Subsidiary to cure promptly any defects in the
creation and issuance of the Notes and the execution and delivery of this
Agreement. The Borrower at its expense will and will use its best efforts
to cause each Subsidiary to promptly execute and deliver to the
Administrative Agent upon request all such other documents, agreements and
instruments as may be reasonably requested to comply with or accomplish the
covenants and agreements of the Borrower or any Subsidiary, as the case may
be, in this Agreement, or to further evidence and more fully describe the
collateral intended as security for the Notes, or to state more fully the
security obligations set out herein, or to make any recordings, to file any
notices or obtain any consents, all as may be necessary or appropriate in
connection therewith.
Section 8.05 Performance of Obligations. The Borrower will pay the
Notes according to the reading, tenor and effect thereof; and the Borrower
will and will use its best efforts to cause each Subsidiary to do and
perform every act and discharge all of the obligations to be performed and
discharged by them under this Agreement, at the time or times and in the
manner specified.
Section 8.06 ERISA Information and Compliance. The Borrower will
promptly furnish and will cause the Subsidiaries and any ERISA Affiliate to
promptly furnish to the Administrative Agent and the Lenders (a)
immediately upon becoming aware of the occurrence of any ERISA Event or of
any "prohibited transaction," as described in section 406 of ERISA or in
section 4975 of the Code, in connection with any Plan or any trust created
thereunder that results in a Material Adverse Effect, a written notice
signed by a Financial Officer specifying the nature thereof, what action
the Borrower, the Subsidiary or the ERISA Affiliate is taking or proposes
to take with respect thereto, and, when known, any action taken or proposed
by the Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto, (b) immediately upon receipt thereof, copies of any notice
of the PBGC's intention to terminate or to have a trustee appointed to
administer any Plan (c) immediately upon receipt of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability in an
amount that would constitute a Material Adverse Effect, a true and complete
copy of such notice and (d) immediately upon becoming aware that a
Multiemployer Plan has been terminated, that the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer
41
Plan, or that the PBGC has instituted or intends to institute proceedings
under section 4042 of ERISA to terminate a Multiemployer Plan, a written
notice signed by a Financial Officer, specifying the nature of such
occurrence and any other information relating thereto requested by the
Majority Lenders. With respect to each Plan (other than a Multiemployer
Plan), the Borrower will, and will cause each Subsidiary and ERISA
Affiliate to, (i) satisfy in full and in a timely manner, without incurring
any late payment or underpayment charge or penalty and without giving rise
to any lien, all of the contribution and funding requirements of section
412 of the Code (determined without regard to subsections (d), (e), (f) and
(k) thereof) and of section 302 of ERISA (determined without regard to
sections 303, 304 and 306 of ERISA), and (ii) pay, or cause to be paid, to
the PBGC in a timely manner, without incurring any late payment or
underpayment charge or penalty, all premiums required pursuant to sections
4006 and 4007 of ERISA.
Section 8.07 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with the laws, rules, regulations and
orders of any Governmental Authority applicable to it or its Properties
(including, without limitation, Environmental Laws), except where the
failure to do so would not reasonably be expected to result in a Material
Adverse Effect.
Section 8.08 Payment of Taxes. The Borrower will, and will cause each
of its Subsidiaries to, pay its Taxes, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 8.09 Books and Records. The Borrower will maintain proper
books of account and other records and enter therein complete and accurate
entries and records of all of its transactions and give representatives of
the Lenders, at the Lenders' expense, reasonable access thereto at all
reasonable times, including permission to examine, copy and make abstracts
from any of such books and records and such other information as it may
from time to time reasonably request. In addition, it will be available to
the Lenders, or cause its officers to be available from time to time upon
reasonable notice to discuss the status of the Loans, its business and any
statements, records or documents furnished or made available to the Lenders
in connection with this Agreement.
ARTICLE IX
Negative Covenants
The Borrower covenants and agrees that, so long as any of the
Commitments are in effect and until payment in full of Loans hereunder, all
interest thereon and all other amounts payable by the Borrower hereunder,
without the prior written consent of the Majority Lenders:
Section 9.01 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
Property now owned or hereafter owned by it, except:
42
(a) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof;
(b) easements, rights-of-way, minor defects or irregularities in title
and other similar encumbrances having no material adverse effect on the use
or value of property or on the conduct of the Borrower's business;
(c) unexercised liens for taxes not delinquent or being contested in
good faith by appropriate proceedings and for which adequate reserves are
being maintained;
(d) mechanics, suppliers, materialmen's and similar liens arising in
the ordinary course of business which are being contested in good faith by
appropriate action so long as the execution of such liens has been stayed;
(e) deposits to secure workers' compensation, unemployment insurance,
environmental liabilities and other similar items to the extent required by
applicable law and not securing indebtedness;
(f) Liens on equipment arising from capital leases;
(g) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be;
(h) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security
interests and the Debt secured thereby are incurred prior to or within 45
days after such acquisition or the completion of such construction or
improvement and (ii) such security interests shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(i) Liens on office buildings and research facilities;
(j) Liens which secure Debt owing by a Subsidiary to the Borrower or
another Subsidiary;
(k) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Liens referred to in
the foregoing clauses (a), (f), (g), (h), (i) and (j), provided that the
principal amount of the Debt secured thereby shall not exceed the principal
amount of the Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Liens shall be
limited to all or part of substantially the same property which secured the
Liens extended, renewed or replaced (plus improvements on such property);
43
(l) Liens on Excess Margin Stock, if any, with Excess Margin Stock
determined on the date a Lien on such Excess Margin Stock is affixed;
(m) the entry into indemnity agreements in connection with the
issuance of surety bonds by one or more insurance companies at the request
of Borrower or a Subsidiary;
(n) Liens on cash, cash equivalents or other investments that are
contractual rights to set-off relating to the establishment of depository
or similar relations with banks and other financial institutions not given
in connection with the issuance of Debt;
(o) Liens on cash, cash equivalents or other investments arising by
virtue of any statutory or common law provision relating to bankers' liens,
rights of set-off or similar rights; and
(p) in addition to the foregoing, any other Liens securing Debt which
in the aggregate amount does not exceed an amount equal to 10% of
Consolidated assets of the Borrower as at the end of the then most recently
completed fiscal quarter as reflected on the financial statements delivered
pursuant hereto.
Section 9.02 Sales and Leasebacks. The Borrower will not nor will it
permit any Subsidiary to enter into any arrangement, directly or
indirectly, with any Person whereby the Borrower or any Subsidiary shall
sell or transfer any of its Property, whether now owned or hereafter
acquired, and whereby the Borrower or any Subsidiary shall then or
thereafter rent or lease for a period of more than three years as lessee
such Property or any part thereof or other Property which the Borrower or
any Subsidiary intends to use for substantially the same purpose or
purposes as the Property sold or transferred unless either (i) the Borrower
or such Subsidiary would be entitled, pursuant to the provisions of Section
9.01, to create Debt secured by a Lien on the Property to be leased, or
(ii) the Borrower (and in any such case the Borrower covenants and agrees
that it will do so), within four months after the effective date of such
sale and lease-back transaction (whether made by the Borrower or a
Subsidiary), applies to the retirement of Debt of the Borrower maturing by
the terms thereof more than one year after the original creation thereof
(hereinafter in this Section called "Funded Debt") an amount equal to the
greater of (A) the net proceeds of the sale of the real property leased
pursuant to such arrangement or (B) the fair value of the real property so
leased at the time of entering into such arrangement (as determined by the
Borrower's Board of Directors); provided that the amount to be applied to
the retirement of Funded Debt shall be reduced by an amount equal to the
principal amount of other Funded Debt voluntarily retired by the Borrower
within such four-month period, excluding retirements of Funded Debt
pursuant to mandatory sinking fund or prepayment provisions or by payment
at maturity.
Section 9.03 Mergers, Etc. The Borrower shall not merge into or with
or consolidate with any other Person, or sell, lease or otherwise dispose
of all or substantially all of its Property or assets to any other Person
unless:
(a) such Person assumes the obligations of the Borrower hereunder and
under the Notes and the performance of the covenants of the Borrower under
this Agreement in writing reasonably satisfactory in form and substance to
the Majority Lenders; and
44
(b) immediately thereafter and after giving effect thereto, no Event
of Default shall have occurred and be continuing.
Section 9.04 Proceeds of Notes. The Borrower will not permit the
proceeds of the Notes to be used for any purpose other than those permitted
by Section 7.07. Neither the Borrower nor any Person acting on behalf of
the Borrower has taken or will take any action which might cause this
Agreement or the Notes to violate Regulation G, U or X or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 (as amended, the
"Exchange Act") or any rule or regulation thereunder, in each case as now
in effect or as the same may hereinafter be in effect.
Section 9.05 ERISA Compliance. The Borrower will not at any time:
(a) Engage in, or permit any Subsidiary or ERISA Affiliate to engage
in, any transaction in connection with which the Borrower, any Subsidiary
or any ERISA Affiliate could be subjected to either a civil penalty
assessed pursuant to section 502(c), (i) or (1) of ERISA or a tax imposed
by Chapter 43 of Subtitle D of the Code, that would have a Material Adverse
Effect;
(b) Terminate, or permit any Subsidiary or ERISA Affiliate to
terminate, any Plan in a manner, or take any other action with respect to
any Plan, which could result in any liability to the Borrower; any
Subsidiary or any ERISA Affiliate to the PBGC, that would have a Material
Adverse Effect;
(c) Fail to make, or permit any Subsidiary or ERISA Affiliate to fail
to make, full payment when due of all amounts which, under the provisions
of any Plan or applicable law, the Borrower, a Subsidiary or any ERISA
Affiliate is required to pay as contributions thereto;
(d) Permit to exist, or allow any Subsidiary or ERISA Affiliate to
permit to exist, any accumulated funding deficiency within the meaning of
Section 302 of ERISA or section 412 of the Code, whether or not waived,
with respect to any Plan;
(e) Permit any Pension Plan to have any Unfunded Pension Liability
that would result in the violation of any funding requirements under
Section 302 of ERISA or Section 412 of the Code;
(f) Acquire, or permit any Subsidiary or ERISA Affiliate to acquire,
an interest in any Person that causes such Person to become an ERISA
Affiliate with respect to the Borrower, any Subsidiary or any ERISA
Affiliate if such Person at the time of such acquisition, maintains or
contributes to (1) any Multiemployer Plan if the then existing potential
withdrawal liability of such Person to such Multiemployer Plan, if imposed,
would have a Material Adverse Effect or (2) any other Plan that is subject
to Title IV of ERISA if immediately prior to such acquisition, the funded
current liability percentage (as defined in section 302(d)(8) of ERISA) of
such Plan is below 90% or the Plan otherwise fails to satisfy the
requirements of section 302(d)(9)(B) of ERISA);
(g) Incur, or permit any Subsidiary or ERISA Affiliate to incur, a
liability to or on account of a Plan under sections 515, 4062, 4063, 4064,
4201 or 4204 of ERISA;
45
(h) Amend or permit any Subsidiary or ERISA Affiliate to amend, a Plan
resulting in an increase in current liability such that the Borrower, any
Subsidiary or any ERISA Affiliate is required to provide security to such
Plan under section 401(a)(29) of the Code.
Section 9.06 Leverage Ratio. The Borrower shall not permit the ratio
of Consolidated Debt to the sum of Consolidated Debt and Stockholders'
Equity to exceed at any time 60%.
Section 9.07 Transactions with Affiliates. Neither the Borrower nor
any Subsidiary will enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of Property or the
rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement, are in the ordinary course of its
business and are upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate.
ARTICLE X.
Events of Default; Remedies
Section 10.01 Events of Default. One or more of the following events
shall constitute an "Event of Default":
(a) the Borrower shall default in the payment or prepayment when due
of (i) any principal of any Loan or any Reimbursement Obligation, or (ii)
any interest on any Loan, fees or other amount payable by it hereunder
which such default, other than a default in payment or prepayment of
principal or any Reimbursement Obligation (which shall have no cure
period), shall continue unremedied for a period of 10 Business Days; or
(b) at any time (i) a default without cure shall exist by the Borrower
or any Substantial Subsidiary in payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise),
including any applicable grace period, of any principal or stated amount of
or interest on any of its other Debt aggregating $25,000,000 or more, or
any amount equal to or greater than an aggregate of $10,000,000 payable in
respect of Hedging Agreements when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) including any
applicable grace period, or (ii) any event specified in any note,
agreement, indenture or other document evidencing or relating to any Debt
having an outstanding principal balance or stated amount aggregating
$50,000,000 or more, or any Hedging Agreement, shall occur if the effect of
any such event is to cause such Debt or sums aggregating $10,000,000 or
more payable under one or more Hedging Agreements to actually become due
prior to its or their stated maturity; or
(c) any representation, warranty or certification made or deemed made
herein by the Borrower or any Subsidiary, or any certificate furnished to
any Lender or the Administrative Agent pursuant to the provisions hereof,
shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) the Borrower shall default in the performance of any of its
obligations under Section 9.03; or the Borrower shall default in the
performance of any of its obligations under Article IX (other than Section
9.03) and such default shall continue unremedied for a period of five (5)
Business Days; or the Borrower shall default in the performance of any of
its obligations
46
under Article VIII (other than the payment of amounts due which shall be
governed by Section 10.01(a)) or any other Article of this Agreement other
than under Article IX and such default shall continue unremedied for a
period of thirty (30) days after the earlier to occur of (i) notice thereof
to the Borrower by the Administrative Agent or any Lender (through the
Administrative Agent), or (ii) the Borrower otherwise becoming aware of
such default; or
(e) the Borrower or any Substantial Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or the Board of
Directors of the Borrower or any Substantial Subsidiary shall take any
action to authorize any of the foregoing; or
(f) an involuntary case or other proceeding shall be commenced against
the Borrower or any Substantial Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed or
unstayed for a period of sixty (60) days or an order for relief shall be
entered against the Borrower or any Substantial Subsidiary under the
federal bankruptcy laws as now or hereafter in effect, or
(g) a judgment or judgments for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered by a court against the
Borrower or any Substantial Subsidiary (i) and the same shall not be
discharged (or, with respect to a judgment of a court other than a United
States State or Federal court, adequate provision shall not be made for
such discharge), or (ii) a stay of execution thereof shall not be procured,
within thirty (30) days from the date of entry thereof or such longer
period as the Borrower shall have to perfect an appeal and the Borrower or
such Subsidiary shall not, within said period, or such longer period during
which execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal.
Section 10.02 Remedies.
(a) In the case of an Event of Default other than one referred to in
clauses (e) or (f) of Section 10.01 the Administrative Agent, upon request
of the Majority Lenders, shall, by notice to the Borrower, cancel the
Commitments and/or declare the principal amount then outstanding of, and
the accrued interest on, the Loans, any Letter of Credit Outstandings
(including Reimbursement Obligations) and all other amounts payable by the
Borrower hereunder and under the Notes or any Letter of Credit to be
forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other formalities of any kind, all of
which are hereby expressly waived by the Borrower and the Borrower shall
automatically and immediately be obligated to Cash Collateralize all Letter
of Credit Outstandings.
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(b) In the case of the occurrence of an Event of Default referred to
in clauses (e) or (f) of Section 10.01 the Commitments shall be
automatically canceled and the principal amount then outstanding of, and
the accrued interest on, the Loans, any Letter of Credit Outstandings
(including Reimbursement Obligations) and all other amounts payable by the
Borrower hereunder and under the Notes or any Letter of Credit shall become
automatically immediately due and payable without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower and the Borrower shall automatically and immediately be obligated
to Cash Collateralize all Letter of Credit Outstandings.
(c) All proceeds received after maturity of the Notes, whether by
acceleration or otherwise shall be applied pro rata to the Lenders in
accordance with their related Percentage Shares: first to reimbursement of
expenses and indemnities provided for in this Agreement; second to accrued
interest on the Notes; third to fees; fourth to principal outstanding on
the Notes and other Indebtedness; and any excess shall be paid to the
Borrower or as otherwise required by any Governmental Requirement.
(d) In connection with any legal action or proceeding with respect to
this Agreement or the Notes, the Administrative Agent, the Lenders and the
Borrower each agrees and each agrees on behalf of its Affiliates that in no
event shall any of them be entitled to or claim any punitive,
consequential, exemplary or special damages against any of the other
parties hereto.
ARTICLE XI.
The Administrative Agent
Section 11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
agent hereunder with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto. The Administrative Agent
(which term as used in this sentence and in Section 11.05 and the first
sentence of Section 11.06 shall include reference to its Affiliates and its
and its Affiliates' officers, directors, employees, attorneys, accountants,
experts and agents, but only to the extent such Affiliate or Person is
acting on behalf of the Administrative Agent): (a) shall have no duties or
responsibilities except those expressly set forth herein or in the Notes,
and shall not by reason hereof or by reason of the Notes be a trustee or
fiduciary for any Lender; (b) makes no representation or warranty to any
Lender and shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement, or
in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, execution, effectiveness, legality,
enforceability or sufficiency of this Agreement, any Note or any other
document referred to or provided for herein or for any failure by the
Borrower or any other Person (other than the Administrative Agent) to
perform any of its obligations hereunder or thereunder or for the
existence, value, perfection or priority of any collateral security or the
financial or other condition of the Borrower, the Subsidiaries or any other
obligor or guarantor; (c) except pursuant to Section 11.07 shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder; and (d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith including its
own
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ordinary negligence, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents, accountants,
attorneys and experts and shall not be responsible for the negligence or
misconduct of any such agents, accountants, attorneys or experts selected
by it in good faith or any action taken or omitted to be taken in good
faith by it in accordance with the advice of such agents, accountants,
attorneys or experts. The Administrative Agent may deem and treat the payee
of any Note as the holder thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof permitted hereunder
shall have been filed with the Administrative Agent. The Administrative
Agent is authorized to release any collateral that is permitted to be sold
or released pursuant to the terms hereof or of the Notes. Notwithstanding
anything in this Agreement to the contrary, none of the Lead Arrangers,
Book Manager, Syndication Agent or Co-Documentation Agents shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or a Lender hereunder.
Section 11.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, facsimile,
telegram or cable) believed by it to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent.
Section 11.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge of the occurrence of a Default (other than the
non-payment of principal of or interest on Loans or of fees) unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of
Default." In the event that the Administrative Agent receives such a notice
of the occurrence of a Default, the Administrative Agent shall give prompt
notice thereof to the Lenders. In the event of a payment Default, the
Administrative Agent shall give each Lender prompt notice of each such
payment Default.
Section 11.04 Rights as a Lender. With respect to its Commitments and
the Loans made by it, Scotia Capital (and any successor acting as the
Administrative Agent) in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the
same as though it were not acting as the Administrative Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. Scotia Capital
(and any successor acting as the Administrative Agent) and its Affiliates
may (without having to account therefor to any Lender) accept deposits
from, lend money to and generally engage in any kind of banking, trust or
other business with the Borrower (and any of its Affiliates) as if it were
not acting as the Administrative Agent, and Scotia Capital and its
Affiliates may accept fees and other consideration from the Borrower for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section 11.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent ratably in accordance with their Percentage Shares for
(i) the matters as described in Section 12.03 to the extent not indemnified
and reimbursed by the Borrower under Section 12.03, but without limiting
the obligations of the Borrower under said Section 12.03, and (ii) for
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any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of: (i) this
Agreement or any other documents contemplated by or referred to herein or
the transactions contemplated hereby, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder or (ii) the
enforcement of any of the terms of this Agreement; whether or not any of
the foregoing specified in this Section 11.05 arises from the sole or
concurrent negligence of the Administrative Agent, provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Administrative Agent.
Section 11.06 Non-Reliance on Administrative Agent and other Lenders.
Each Lender acknowledges and agrees that it has, independently and without
reliance on the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and its decision to enter into this Agreement, and
that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis
and decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to
the performance or observance by the Borrower hereof, of the Notes or any
other document referred to or provided for herein or to inspect the
properties or books of the Borrower. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business
of the Borrower (or any of its Affiliates) which may come into the
possession of the Administrative Agent or any of its Affiliates. In this
regard, each Lender acknowledges that Mayer, Brown, Rowe & Maw LLP is
acting in this transaction as special counsel to the Administrative Agent
only. Each Lender will consult with its own legal counsel to the extent
that it deems necessary in connection herewith or with the Notes and the
matters contemplated therein.
Section 11.07 Action by Administrative Agent. Except for action or
other matters expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall (a) receive written instructions
from the Majority Lenders (or all of the Lenders as expressly required by
Section 12.04) specifying the action to be taken and (b) be indemnified to
its satisfaction by the Lenders against any and all liability and expenses
which may be incurred by it by reason of taking or continuing to take any
such action. The instructions of the Majority Lenders (or all of the
Lenders as expressly required by Section 12.04) and any action taken or
failure to act pursuant thereto by the Administrative Agent shall be
binding on all of the Lenders. If a Default has occurred and is continuing,
the Administrative Agent shall take such action with respect to such
Default as shall be directed by the Majority Lenders (or all of the Lenders
as required by Section 12.04) in the written instructions (with
indemnities) described in this Section 11.07, provided that, unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it
shall deem advisable in the best interests of the
50
Lenders. In no event, however, shall the Administrative Agent be required
to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or applicable law.
Section 11.08 Resignation of Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and
the Borrower. Upon any such resignation, the Majority Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Majority Lenders
and shall have accepted such appointment within sixty (60) days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent; provided that, if, such retiring
Administrative Agent is unable to find a commercial banking institution
which is willing to accept such appointment, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Borrower shall have the right to appoint a successor agent (including a
financial institution not a Lender), unless the Majority Lenders appoint a
successor as provided for above. Upon the acceptance of such appointment
hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative
Agent. After any retiring Administrative Agent's resignation hereunder as
the Administrative Agent, the provisions of this Article XI and Section
12.03 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the
Administrative Agent.
ARTICLE XII
Miscellaneous
Section 12.01 Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power or privilege hereunder or
under the Notes shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder or under the
Notes preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
Section 12.02 Notices. All notices and other communications provided
for herein and in the Notes (including, without limitation, any
modifications of, or waivers or consents under, this Agreement or the
Notes) shall be given or made by facsimile, courier or U.S. Mail or in
writing and transmitted, mailed or delivered to the intended recipient as
follows, (a) if to the Borrower or the Administrative Agent, at the
"Address for Notices" specified below its name on the signature pages
hereof or in the Notes; and (b) if to any Lender, to the address specified
in the "Administrative Questionnaire" form supplied by the Administrative
Agent; or, as to any party, at such other address as shall be designated by
such party in a notice to each other party. Except as otherwise provided in
this Agreement or in the Notes, all such communications shall be deemed to
have been duly given when transmitted, if transmitted before 1:00 p.m.
local time of the recipient on a Business Day (otherwise on the next
succeeding Business Day) by facsimile and evidence or confirmation of
receipt is obtained, or personally delivered or, in the case of a mailed
notice, three (3) Business Days after the date deposited in the mails,
postage prepaid, in each case given or addressed as aforesaid.
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Section 12.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with this Agreement, the preparation
and administration of this Agreement and the Notes or any amendments,
modifications or waivers of the provisions hereof or thereto, as the case
may be, (ii) all reasonable and documented out-of-pocket expenses incurred
by the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section, or in
connection with the Loans made hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender, each Affiliate of such party, and all
officers, directors, employees, agents and advisors of such party (each
such Person being called an "Indemnitee") against any and all liabilities,
losses, damages, costs and reasonable expenses of any kind which may be
incurred by any Indemnitee in any way relating to, arising out of this
Agreement or the Notes or any claim, litigation, investigation or
proceeding relating to any of the foregoing ("Proceedings") including any
of the foregoing arising from the negligence of the Indemnitee (whether or
not any Indemnitee shall be designated a party thereto) and to reimburse
such Indemnitee for any legal or other reasonable and documented
out-of-pocket expenses as they are incurred in connection with
investigating or defending the foregoing; provided that no Indemnitee shall
have the right to be indemnified hereunder for its own gross negligence or
willful misconduct or for its failure to perform its obligations hereunder
or under the Notes. In addition, the Borrower shall pay any civil penalty
or fine assessed by OFAC against, and all reasonable costs and expenses
(including reasonable and documented counsel fees and disbursements)
incurred in connection with defense thereof, by the Administrative Agent or
any Lender as a result of conduct of the Borrower that violates a sanction
enforced by OFAC.
(c) Promptly after receipt by an Indemnitee of notice of the
commencement of any Proceedings, such Indemnitee will, if a claim in
respect thereof is to be made against the Borrower, notify the Borrower in
writing of the commencement thereof; provided that (i) the omission so to
notify the Borrower will not relieve it from any liability which it may
have hereunder except to the extent it has been materially prejudiced by
such failure and (ii) the omission so to notify the Borrower will not
relieve it from any liability which it may have to an Indemnitee otherwise
than on account of this indemnity agreement. In case any such Proceedings
are brought against any Indemnitee and it notifies the Borrower of the
commencement thereof, the Borrower will be entitled to participate therein,
and, may elect by written notice delivered to the Indemnitee to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnitee;
provided further, that if the defendants in any such Proceedings include
both the Indemnitee and the Borrower and the Indemnitee shall have been
advised by counsel that its interest in the Proceeding are likely to
conflict with those of the Borrower or that such litigation may result in a
non-indemnified claim, the Indemnitee shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate
in the defense of such proceedings on behalf of such Indemnitee. Upon
receipt of notice from the Borrower to such Indemnitee of its election so
to assume the defense of such Proceedings and approval by the
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Indemnitee of counsel, the Borrower will not be liable to such Indemnitee
for expenses incurred by the Indemnitee in connection with the defense
thereof (other than reasonable costs of investigation) unless (A) the
Indemnitee shall have employed separate counsel in connection with a
conflict of interest in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Borrower shall not be
liable for the expenses of more than one separate counsel, approved by the
Administrative Agent, representing the Indemnitees who are parties to such
proceedings), (B) the Borrower shall not have employed counsel reasonably
satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after notice of commencement of the proceedings or (C) the
Borrower has authorized in writing the employment of separate counsel for
the Indemnitee; and except that, if clause (A) or (C) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (A) or (C). Notwithstanding any other provision of this Agreement,
no settlement shall be entered into without the Borrower's prior written
consent, the Borrower shall not be liable to pay any settlement agreed to
without its prior written consent provided the Borrower, at the reasonable
request of the Administrative Agent, puts up collateral with the
Administrative Agent, to sufficiently pay any liability that may reasonably
be incurred in connection with such Proceeding. In addition, no settlement
involving any Indemnitee who is a party to such Proceeding may be entered
into by the Borrower on behalf of such Indemnitee if such settlement
contains any admission of liability or fault by the Indemnitee and unless a
full release of the Indemnitee is entered into in connection therewith. At
any time after the Borrower has assumed the defense of any Proceeding
involving any Indemnitee, such Indemnitee may elect to withdraw its request
for indemnity and thereafter the defense of such Proceeding on behalf of
such Indemnitee shall be maintained by counsel of the Indemnitee's choosing
and at the Indemnitee's expense.
(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, any Loan or the use of the proceeds thereof.
Section 12.04 Amendments, Etc. Except as otherwise set forth herein,
any provision of this Agreement (other than a provision regarding a Letter
of Credit which shall only be modified in accordance with the terms of the
applicable Letter of Credit) may be amended, modified or waived with the
prior written consent of the Borrower and the Majority Lenders; provided
that (a) no amendment, modification or waiver which extends the Termination
Date of the Loans, increases the Aggregate Commitments, forgives the
principal amount of any Indebtedness outstanding under this Agreement,
postpones any scheduled date for the payment of principal, interest or
fees, reduces the interest rate applicable to the Loans or the fees payable
to the Lenders generally, extends any Letters of Credit expiration date
beyond the Termination Date, affects this Section 12.04 or Section
12.06(a), modifies the definition of "Majority Lenders" or modifies Section
4.01 or 4.02 to change any Lender's right to receive pro rata distribution
of payments and proceeds, shall be effective without consent of all
Lenders, (b) no amendment, modification or waiver which increases the
Commitment of any Lender shall be effective without the consent of such
Lender, (c) no amendment, modification or waiver which increases the Stated
Amount of any Letter of Credit unless consented to by the Issuer of such
Letter of Credit, and (d) no amendment, modification or waiver which
modifies the rights, duties or
53
obligations of the Administrative Agent shall be effective without the
consent of the Administrative Agent.
Section 12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 12.06 Assignments and Participations.
(a) The Borrower may not assign its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Any Lender may, upon the prior written consent of the
Administrative Agent, the Borrower (so long as no Default or Event of
Default shall be in existence, in which case the consent of the Borrower
shall not be required) (which consent will not be unreasonably withheld or
delayed), and the Issuer, in its capacity as issuer of Letters of Credit
(in its sole and absolute discretion), assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement pursuant to an Assignment Agreement substantially in the form of
Exhibit E (an "Assignment") provided, however, that (i) any such assignment
shall be in the amount of at least $10,000,000 (or, if less, the then
entire remaining amount of such Lender's Loans and Commitments) or such
lesser amount to which the Borrower has consented, (ii) the assignee or
assignor shall pay to the Administrative Agent a processing and recordation
fee of $3,500.00 for each assignment, (iii) there shall be no assignment to
an Eligible Assignee if such assignment would violate any applicable law,
rule or regulation, and (iv) an assignment by a Lender under this Section
12.06(b) to such Lender's Affiliate which is an Eligible Assignee shall not
require consent of the Administrative Agent or the Borrower. Any such
assignment will become effective upon the execution and delivery to the
Administrative Agent of the Assignment and the consent of the
Administrative Agent. Promptly after receipt of an executed Assignment, the
Administrative Agent shall send to the Borrower a copy of such executed
Assignment. Upon receipt of such executed Assignment, the Borrower, will,
at its own expense, execute and deliver new Notes to the assignor and/or
assignee, as appropriate, in accordance with their respective interests as
they appear. Upon the effectiveness of any assignment pursuant to this
Section 12.06(b), the assignee will become a "Lender," if not already a
"Lender," for all purposes of this Agreement. The assignor shall be
relieved of its obligations hereunder to the extent of such assignment (and
if the assigning Lender no longer holds any rights or obligations under
this Agreement, such assigning Lender shall cease to be a "Lender"
hereunder except that its rights under Sections 4.06, 5.01, 5.05 and 12.03
shall not be affected). The Administrative Agent will prepare on the last
Business Day of each month during which an assignment has become effective
pursuant to this Section 12.06(b), a new Annex 1 giving effect to all such
assignments effected during such month, and will promptly provide the same
to the Borrower and each of the Lenders.
(c) Each Lender may transfer, grant or assign participations in all or
any part of such Lender's interests hereunder pursuant to this Section
12.06(c) to any Person, provided that: (i) such Lender shall remain a
"Lender" for all purposes of this Agreement and the transferee of such
participation shall not constitute a "Lender" hereunder; and (ii) no
participant under any such participation shall have rights to approve any
amendment to or waiver of any of this Agreement or the Notes except to the
extent such amendment or waiver would (y) forgive any
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principal owing on any Indebtedness or extend the final maturity of the
Loans or (z) reduce the interest rate (other than as a result of waiving
the applicability of any post-default increases in interest rates) or fees
applicable to any of the commitments or Loans in which such participant is
participating, or postpone the payment of any thereof. In the case of any
such participation, the participant shall not have any rights under this
Agreement (the participant's rights against the granting Lender in respect
of such participation to be those set forth in the agreement with such
Lender creating such participation), and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold such
participation, provided that such participant shall be entitled to receive
additional amounts under Article V on the same basis as if it were a Lender
and be indemnified under Section 12.03 as if it were a Lender. In addition,
each agreement creating any participation must include an agreement by the
participant to be bound by the provisions of Section 12.15.
(d) The Lenders may furnish any information concerning the Borrower in
the possession of the Lenders from time to time to assignees and
participants (including prospective assignees and participants); provided
that, such Persons agree to be bound by the provisions of Section 12.15
hereof.
(e) Notwithstanding anything in this Section 12.06 to the contrary,
any Lender may assign and pledge all or any of its Notes to any Federal
Reserve Bank or the United States Treasury as collateral security pursuant
to Regulation A of the Board of Governors of the Federal Reserve System and
any operating circular issued by such Federal Reserve System and/or such
Federal Reserve Bank. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.
(f) Notwithstanding any other provisions of this Section 12.06, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of
any state.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(a "SPC"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide
to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC
to make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof,
(iii) any such Loan made by such SPC shall be subject to all of the terms
and provisions hereof, and (iv) such Granting Lender and SPC shall
otherwise be treated and have the rights and obligations as if the SPC was
a participant pursuant to Section 12.06(c) above. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which
shall remain with the Granting Lender). In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the
termination of this
55
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything
to the contrary contained in this Section 12.06, any SPC may (A) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent, assign all or a portion of its interest in any Loan
to the Granting Lender or to any financial institutions (consented to by
the Borrower and Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or
maintenance of Loans and (B) subject to Section 12.15 disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC. This section may not be
amended without the written consent of the Granting Lender.
(h) In the event that S&P or Moody's shall, after the date that any
Person becomes a Lender, downgrade the long-term certificate of deposit
ratings of such Lender, and the resulting ratings shall be below BBB- or
Baa3, respectively, or the equivalent, then the Borrower and the Issuer
shall each have the right, but not the obligation, upon notice to such
Lender and the Administrative Agent, to replace such Lender with an
Eligible Assignee or a financial institution (a "Replacement Lender")
acceptable to the Borrower, the Administrative Agent and the Issuer (such
consents not to be unreasonably withheld or delayed; provided that no such
consent shall be required if the Replacement Lender is an existing Lender),
and upon any such downgrading of any Lender's long-term certificate of
deposit rating, such Lender hereby agrees to transfer and assign (in
accordance with this Section) all of its Commitments and other rights and
obligations under this Agreement and its Notes to such Lender; provided
that, (i) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments, Loans and Notes
being assigned, free and clear of any Liens) and (ii) the purchase price
paid by the Lender shall be in the amount of such Lender's Loans, together
with all accrued and unpaid interest and fees in respect thereof, plus all
other amounts (other than the amounts (if any) demanded and unreimbursed
under Sections 4.06 and 5.01, which shall be paid by the Borrower), owing
to such Lender hereunder. Upon any such termination or assignment, such
Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of, and subject to the obligations of, any provisions of
this Agreement which by its terms survive the termination of this
Agreement.
Section 12.07 Invalidity. In the event that any one or more of the
provisions contained herein or in the Notes shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of the
Notes or this Agreement.
Section 12.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute this
Agreement by signing any such counterpart.
Section 12.09 References. The words "herein," "hereof," "hereunder"
and other words of similar import when used in this Agreement refer to this
Agreement as a whole, and not to any particular article, section or
subsection. Any reference herein to a Section shall be deemed to
56
refer to the applicable Section of this Agreement unless otherwise stated
herein. Any reference herein to an exhibit or schedule shall be deemed to
refer to the applicable exhibit or schedule attached hereto unless
otherwise stated herein.
Section 12.10 Survival. The obligations of the parties under Section
4.06, Article V, and Sections 11.05 and 12.03 shall survive the repayment
of the Loans and the termination of the commitments. To the extent that any
payments on the Indebtedness or proceeds of any collateral are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to
such extent, the Indebtedness so satisfied shall be revived and continue as
if such payment or proceeds had not been received and the Administrative
Agent's and the Lenders' Liens, security interests, rights, powers and
remedies under this Agreement shall continue in full force and effect.
Section 12.11 Captions. Captions and section headings appearing herein
are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
Section 12.12 No Oral Agreements. This Agreement and the Notes embody
the entire agreement and understanding between the parties and supersede
all other agreements and understandings between such parties relating to
the subject matter hereof and thereof. This Agreement and the Notes
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between
the parties.
Section 12.13 Governing Law; Submission to Jurisdiction.
(a) This Agreement and the Notes (including, but not limited to, the
validity and enforceability hereof and thereof) shall be governed by, and
construed in accordance with, the laws of the State of New York, other than
the conflict of laws rules thereof.
(b) Each Letter of Credit shall be governed by, and construed in
accordance with, the laws or rules designated in such Letter of Credit, or
if no laws or rules are designated, (i) in the case of a Standby Letter of
Credit, the International Standby Practices (ISP98--International Chamber
of Commerce Publication Number 590 (the "ISP Rules")), without regards to
conflicts of law provisions and (ii) in the case of a Documentary Letter of
Credit, the Uniform Customs and Practice for Documentary Credits, 1993
Revision, ICC Publication Number 500 (the "UCP Rules"), without regards to
conflicts of law provisions and, as to matters not governed by the ISP
Rules or the UCP Rules, the internal laws of the State of New York.
(c) Any legal action or proceeding with respect to this Agreement, any
Letter of Credit or the Notes shall be brought in the courts of the State
of New York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement, each of the
Borrower, the Administrative Agent and each Lender hereby accepts for
itself and (to the extent permitted by law) in respect of its Property,
generally and unconditionally, the jurisdiction of the aforesaid courts
provided, however, that this Section shall not limit the right to remove
such suit, action or proceeding from a New York State court to a
57
Federal court sitting in the City of New York. Each of the Borrower, the
Administrative Agent, each Lender and each Issuer hereby irrevocably waives
any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens, which it may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions. This submission to jurisdiction is non-exclusive
and does not preclude the parties from obtaining jurisdiction over other
parties in any court otherwise having jurisdiction.
(d) The Borrower hereby consents to process being served in any suit,
action, or proceeding of the nature referred to in this Section 12.13 by
the mailing of a copy thereof by registered or certified air mail, postage
prepaid, return receipt requested, to its address specified in Section
12.02 and agrees that such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding
and (ii) shall, to the fullest extent permitted by law, be taken and held
to be valid personal service upon and personal delivery to it. This
provision shall not be deemed to apply to any suit, action, or proceeding
involving financing relationships which are in no way related to the
financing relationship established and contemplated by this Agreement.
(e) Nothing herein shall affect the right of the Borrower, the
Administrative Agent or any Lender or any holder of a Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
(f) Each of the Borrower and each Lender hereby (i) irrevocably and
unconditionally waive, to the fullest extent permitted by law, trial by
jury in any legal action or proceeding relating to this Agreement and for
any counterclaim therein; (ii) irrevocably waive, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any such
litigation any special, exemplary, punitive or consequential damages, or
damages other than, or in addition to, actual damages; (iii) certify that
no party hereto nor any representative or Administrative Agent of counsel
for any party hereto has represented, expressly or otherwise, or implied
that such party would not, in the event of litigation, seek to enforce the
foregoing waivers, and (iv) acknowledge that it has been induced to enter
into this Agreement and the transactions contemplated hereby and thereby
by, among other things, the mutual waivers and certifications contained in
this Section 12.13.
Section 12.14 Interest. It is the intention of the parties hereto that
each Lender shall conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby would be usurious as
to any Lender under laws applicable to it (including the laws of the United
States of America and the State of New York or any other jurisdiction whose
laws may be mandatorily applicable to such Lender notwithstanding the other
provisions of this Agreement), then, in that event, notwithstanding
anything to the contrary herein or in the Notes or any agreement entered
into in connection with or as security for the Notes, it is agreed as
follows: (a) the aggregate of all consideration which constitutes interest
under law applicable to any Lender that is contracted for, taken, reserved,
charged or received by such Lender hereunder or under the Notes or any
agreements in connection with the Notes shall under no circumstances exceed
the maximum amount allowed by such applicable law, and any excess shall be
canceled automatically and if theretofore paid shall be credited by such
Lender on the principal amount of the Indebtedness (or, to the extent that
the principal amount of the Indebtedness shall have been
58
or would thereby be paid in full, refunded by such Lender to the Borrower);
and (b) in the event that the maturity of the Notes is accelerated by
reason of an election of the holder thereof resulting from any Event of
Default under this Agreement or otherwise, or in the event of any required
or permitted prepayment, then such consideration that constitutes interest
under law applicable to any Lender may never include more than the maximum
amount allowed by such applicable law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically
by such Lender as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited by such Lender on the principal amount
of the Indebtedness (or, to the extent that the principal amount of the
Indebtedness shall have been or would thereby be paid in full, refunded by
such Lender to the Borrower). All sums paid or agreed to be paid to any
Lender for the use, forbearance or detention of sums due hereunder shall,
to the extent permitted by law applicable to such Lender, be amortized,
prorated, allocated and spread throughout the stated term of the Loans
evidenced by the Notes until payment in full so that the rate or amount of
interest on account of any Loans hereunder does not exceed the maximum
amount allowed by such applicable law. If at any time and from time to time
(i) the amount of interest payable to any Lender on any date shall be
computed at the Highest Lawful Rate applicable to such Lender pursuant to
this Section 12.14 and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to such Lender
would be less than the amount of interest payable to such Lender computed
at the Highest Lawful Rate applicable to such Lender, then the amount of
interest payable to such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
applicable to such Lender until the total amount of interest payable to
such Lender shall equal the total amount of interest which would have been
payable to such Lender if the total amount of interest had been computed
without giving effect to this Section 12.14.
Section 12.15 Confidentiality. In the event that the Borrower provides
to the Administrative Agent or the Lenders written or oral confidential
information belonging to the Borrower, the Administrative Agent and the
Lenders shall thereafter maintain such information in strict confidence and
appropriately safeguard such material, at least in accordance with the
standards of care and diligence that each utilizes in maintaining its own
confidential information. This obligation of confidence shall not apply to
such portions of the information which (a) are in the public domain (other
than as a result of its disclosure by the Administrative Agent or the
Lenders), (b) hereafter become part of the public domain without the
Administrative Agent or the Lenders breaching their obligation of
confidence to the Borrower, (c) are previously known by the Administrative
Agent or the Lenders from some source other than Borrower, (d) are
hereafter developed by the Administrative Agent or the Lenders without
using the Borrower's information or otherwise violating any obligations of
the Administrative Agent or Lenders to the Borrower, (e) are hereafter
obtained by or available to the Administrative Agent or the Lenders from a
source other than the Borrower, or its agents or representatives, provided
that such information was not obtained from such source in a manner which
would violate the terms hereof, (f) are disclosed with the Borrower's prior
written consent, (g) must be disclosed either pursuant to any Governmental
Requirement or to Persons regulating the activities of the Administrative
Agent or the Lenders or by the Administrative Agent or any Lender in any
suit, action or proceeding for the purpose of defending itself, materially
reducing its liability or protecting or exercising any material claim,
right, remedy or interest under or in connection with this Agreement or the
Notes, or (h) as may be required by law or regulation or order of any
Governmental Authority in any judicial arbitration or governmental
proceeding (provided,
59
however, that if the Administrative Agent or the Lenders are required to
disclose the confidential information to any such outside party, it or they
will, if legally permitted, notify the Borrower promptly so that the
Borrower may seek any appropriate protective order and/or take other
appropriate action). The Administrative Agent and the Lenders shall not be
liable for such disclosure unless the disclosure to such tribunal or other
person was caused by, or resulted from, a previous disclosure by the
Administrative Agent or the Lenders not permitted hereunder. Further, the
Administrative Agent or a Lender may disclose any such information to any
Affiliate of such Lender, any other Lender, independent engineers or
consultants, any independent certified public accountants, any legal
counsel employed by such Person in connection with this Agreement,
including without limitation, the enforcement or exercise of all rights and
remedies thereunder, or any assignee or participant (including prospective
assignees and participants) in the Loans; provided, however, that the
Administrative Agent or the Lenders shall receive a confidentiality
agreement from the Person to whom such information is disclosed (unless
such Person is already subject to an attorney-client privilege with respect
to such confidential information or otherwise subject to a legal obligation
to maintain such confidentiality) such that said Person shall have the same
obligation to maintain the confidentiality of such information as is
imposed upon the Administrative Agent or the Lenders hereunder.
Notwithstanding anything to the contrary provided herein, this obligation
of confidence shall cease three (3) years from the date the information was
furnished, unless the Borrower requests in writing at least thirty (30)
days prior to the expiration of such three year period, to maintain the
confidentiality of such information for an additional three (3) year
period. The Borrower waives any and all other rights it may have to
confidentiality as against the Administrative Agent and the Lenders arising
by contract, agreement, statute or law except as expressly stated in this
Section 12.15.
Section 12.16 Effectiveness. This Agreement shall become effective and
be binding on each party hereto on the date on which the Administrative
Agent has received signature pages hereto, executed and delivered by the
Borrower, each Lender and the Administrative Agent. The Administrative
Agent shall promptly notify the Borrower and the Lenders of the date such
condition is satisfied (the "Effective Date"), and such notice shall be
conclusive and binding on all parties hereto.
Section 12.17 Termination of Existing Agreement. The Existing
Agreement shall terminate on the Closing Date. Thereupon, the Borrower
shall be released from all obligations arising under the Existing
Agreement. Upon termination of the Existing Agreement, the Existing Lenders
who are Lenders hereunder shall promptly return to the Borrower all Notes
(as such term is defined in the Existing Agreement) issued by the Borrower
to such Existing Lenders pursuant to the terms of the Existing Agreement.
If any Existing Lender or party hereto fails to return a Note issued
pursuant to the Existing Agreement, then such Existing Lender shall
indemnify Borrower against and hold and save Borrower harmless from any
loss, damage, claim, action, cost, charge, and expense suffered by Borrower
as a result of such non-returned Note, provided that if an Existing Lender
subsequently returns a Note issued pursuant to the Existing Agreement, this
Indemnity shall terminate with respect to such Existing Lender.
Section 12.18 USA Patriot Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
60
Borrower which information includes the name and address of the Borrower
and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
61
The parties hereto have caused this Agreement to be duly executed as
of the day and year first above written.
BORROWER: ASHLAND INC.
By: /s/ Daragh L. Porter
--------------------------------------------
Name: Daragh L. Porter
Title: Vice President, Finance and Treasurer
Address for Notices:
If by hand (messenger or other courier) or by
mail to:
50 E. RiverCenter Boulevard
Covington, Kentucky 41012-0391
Attn: Vice President, Finance and Treasurer
Facsimile No: 859-815-5188
Telephone No: 859-815-3825
in each case with a copy to:
Ashland Inc.
50 E. RiverCenter Boulevard
P.O. Box 391
Covington, Kentucky 41012-0391
Attn: General Counsel
Facsimile No. 859-815-3823
Telephone No. 859-815-4711
and in the case of service of process only, to:
3475 Blazer Parkway
Lexington, KY 40509
Attn: Steven L. Spalding
with copy to:
Ashland Inc.
50 E. RiverCenter Boulevard
Covington, Kentucky 41012
Attn: Vice President, Finance and Treasurer
Borrower's Website:
www.ashland.com
ADMINISTRATIVE AGENT THE BANK OF NOVA SCOTIA
AND LENDER:
By: /s/ Todd Meller
--------------------------------------------
Name: Todd Meller
Title: Managing Director
Administrative Agent's Office
-----------------------------
(for payments and Borrowing Notices):
Bank of Nova Scotia New York Agency
c/o The Bank of Nova Scotia
WBO Loan Operations
720 King Street West, 2nd Floor.
Toronto, Ontario
M5V 2T3
Attn: NYA Loan Operations
Attn: Clement Yu
Karen Lam
Telephone No: 212-225-5706
Facsimile No: 212-225-5708
E-Mail: clement_yu@scotiacapital.com
karen_lam@scotiacapital.com
Pay to: The Bank of Nova Scotia New York Agency,
New York, USA
ABA No.: 026-002532
Attn: Karen Lam
Account No. 2308363CORBK77
Ref: Ashland Inc.
Other Notices to Administrative Agent:
--------------------------------------
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attn: David Schwartzbard
Telephone No: 212-225-5221
Facsimile No: 212-225-5254
E-Mail: david_schwartzbard@scotiacapital.com
The Bank of Nova Scotia Lending Office for Base
Rate and Eurodollar Loans:
-----------------------------------------------
Bank of Nova Scotia New York Agency
c/o The Bank of Nova Scotia
WBO Loan Operations
720 King Street West, 2nd Floor.
Toronto, Ontario
M5V 2T3
Attn: NYA Loan Operations
Attn: Clement Yu
Karen Lam
Telephone No: 212-225-5706
Facsimile No: 212-225-5708
E-Mail: clement_yu@scotiacapital.com
karen_lam@scotiacapital.com
Address for Notices to The Bank of Nova Scotia,
as Lender:
-----------------------------------------------
Bank of Nova Scotia New York Agency
c/o The Bank of Nova Scotia
WBO Loan Operations
720 King Street West, 2nd Floor.
Toronto, Ontario
M5V 2T3
Attn: NYA Loan Operations
Attn: Clement Yu
Karen Lam
Telephone No: 212-225-5706
Facsimile No: 212-225-5708
E-Mail: clement_yu@scotiacapital.com
karen_lam@scotiacapital.com
LENDER: BANK OF AMERICA, N.A.
By: /s/ Irene Bertozzi Bartenstein
-------------------------------------------
Name: Irene Bertozzi Bartenstein
Title: Principal
Address for Operations Information:
-----------------------------------
Bank of America, N.A.
Mail Stop MA5-100-09-02
100 Federal Street
Boston, MA 02110
Attn: Nancy Craddock
Telephone No: 617-434-8129
Facsimile No: 617-434-8277
Address for Credit Information:
-----------------------------------
Bank of America, N.A.
Mail Stop MA5-100-09-02
100 Federal Street
Boston, MA 02110
Attn: Irene Bartenstein
Telephone No: 617-434-2903
Facsimile No: 617-434-0601
LENDER: SUNTRUST BANK, INC.
By: /s/ Kap Yarbrough
-------------------------------------------
Name: Kap Yarbrough
Title: Vice President
Address for Operations Contact:
-----------------------------------
SunTrust Bank, Inc.
Corporate Loan Specialist
Mail Code: Ga-Atlanta-1941
303 Peachtree St., NE
10th Floor
Atlanta, GA 30308
Attn: Millicent Scandrett
Telephone No: 404-230-1939
Facsimile No: 404-588-4402
E-Mail: millicent.scandrett@suntrust.com
Address for Credit Contact:
-----------------------------------
SunTrust Bank, Inc.
Mail Code: TN: Nashville:1937
201 4th Ave N, 3th Floor
Nashville, TN 37219
Attn: Jim Sloan
Telephone No: 615-748-5745
Facsimile No: 615-748-5269
E-Mail: jim.sloan@suntrust.com
LENDER: JP MORGAN CHASE BANK, N.A.
By: /s/ Linda Meyer
-------------------------------------------
Name: Linda Meyer
Title: Vice President
Address for Operations Contact:
-----------------------------------
JPMorgan Chase Bank, N.A.
1111 Fannin Street, 10th Floor
Houston, Texas 77002-6925
Attn: Leslie Opeyemi
Telephone No: 713-750-2318
Facsimile No: 713-750-2228
E-mail: Leslie.D.Opeyemi@chase.com
Address for Credit Contact:
-----------------------------------
JPMorgan Chase Bank, N.A.
270 Park Avenue - 4th Floor
New York, New York 10017
Attn: Peter Dedousis, Managing Director
Telephone No: 212-270-4062
Facsimile No: 212-270-5100
E-mail: Peter.Dedousis@JPMorgan.com
LENDER: CITIBANK, N.A.
By: /s/ Shirley E. Burrow
-------------------------------------------
Name: Shirley E. Burrow
Title: Attorney-in-Fact
Address for Operations Information:
-----------------------------------
Citicorp USA, Inc.
One Penn's Way
New Castle, DE 19720
Attn: Dennis Banfield
Telephone No: 302-894-6109
Facsimile No: 212-994-0847
Address for Credit Information:
-------------------------------
Citibank, N.A.
333 Clay Street
Suite 3700
Houston, TX 77002
Attn: Shirley E. Burrow
Telephone No: 713-654-2868
Facsimile No: 713-481-0246
LENDER: THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., CHICAGO BRANCH
By: /s/ Masakazu Sato
-------------------------------------------
Name: Masakazu Sato
Title: Deputy General Manager
Address for Operations Information:
-----------------------------------
Address for Operations Information:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
Harborside Financial Center-500 Plaza III
Jersey City, NJ 07311
Attn: Maria de Jesus
Telephone No: 201-413-8571
Facsimile No: 201-521-2335
Address for Credit Information:
-------------------------------
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
Chicago Branch
227 West Monroe Street, Suite 2300
Chicago, IL 60606
Attn: William J. Murray
Telephone No: 312-696-4653
Facsimile No: 312-696-4535
LENDER: CREDIT SUISSE, Cayman Islands Branch
By: /s/ Brian Caldwell
-------------------------------------------
Name: Brian Caldwell
Title: Director
By: /s/ Nupur Kumar
-------------------------------------------
Name: Nupur Kumar
Title: Associate
Address for Operations Information:
-----------------------------------
Credit Suisse
One Madison Avenue
New York, NY 10010
Attn: Courtney Jefferson
Telephone No: 919-994-6364
E-Mail: Courtney.jefferson@credit-suisse.com
Address for Credit Information:
-------------------------------
Credit Suisse
Eleven Madison Avenue
New York, NY 10010
Attn: Brian Caldwell
Telephone No: 212-325-0029
Facsimile No: 212-325-8321
E-Mail: brian.caldwell@credit-suisse.com
LENDER: US BANK, N.A.
By: /s/ Frances W. Josephic
-------------------------------------------
Name: Frances W. Josephic
Title: Vice President
US Bank, N.A. Lending Office for Base Rate and
Eurodollar Loans:
----------------------------------------------
US Bank, N.A.
US Bank Tower
425 Walnut Street, 8th Floor
Cincinnati, OH 45202
Address for Credit Information:
-------------------------------
US Bank, N.A.
US Bank Tower
425 Walnut Street, 8th Floor
Cincinnati, OH 45202
Attn: Richard Neltner
Telephone No: 513-632-4073
Facsimile No: 513-632-2068
LENDER: NATIONAL CITY BANK OF KENTUCKY
By: /s/ Judy Byron
-------------------------------------------
Name:
Title:
Address for Operations Information:
-----------------------------------
National City Bank Of Kentucky
P.O. Box 36000
Louisville, KY 40233
Attn: Gary Heckendorn
Telephone No: 440-546-7398
Facsimile No: 440-546-7342
Address for Credit Information:
-------------------------------
National City Bank Of Kentucky
P.O. Box 36000
Louisville, KY 40233
Attn: Judy Byron
Telephone No: 502-581-5612
Facsimile No: 502-581-4424
LENDER: PNC BANK, NATIONAL ASSOCIATION
By: /s/ Bruce A. Kintner
-------------------------------------------
Name: Bruce A. Kintner
Title: Vice President
Address for Operations Information:
-----------------------------------
PNC Bank, National Association
500 First Avenue
Pittsburgh, PA 15219
Attn: Sherri Collins
Telephone No: 412-766-7653
Facsimile No: 412-768-4586
Address for Credit Information:
-------------------------------
PNC Bank, National Association
201 E. Fifth Street
Cincinnati, OH 45202
Attn: Jeffrey L. Stein
Telephone No: 513-651-8692
Facsimile No: 513-651-8951
LENDER: FIFTH THIRD BANK
By: /s/ Megan S. Heisel
-------------------------------------------
Name: Megan S. Heisel
Title: Vice President
Address for Operations Information:
-----------------------------------
Fifth Third Bank
5050 Kingsley Dr.
Cincinnati, Ohio 45227
Attn: Elizabeth Disselkamp
Telephone No: 513-358-4567
Facsimile No: 513-358-0221
Address for Credit Information:
-------------------------------
Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Megan S. Heisel
Telephone No: 513-534-8662
Facsimile No: 513-534-5947
LENDER: MELLON BANK, N.A.
By: /s/ Mark F. Johnston
-------------------------------------------
Name: Mark F. Johnston
Title: First Vice President
Address for Operations Information:
-----------------------------------
Mellon Bank, N.A.
500 Ross Street
Room 865
Pittsburgh, PA 15259-0003
Attn: Daria Armen
Telephone No: 412-234-1870
Facsimile No: 412-209-6129
Address for Credit Information:
-------------------------------
Mellon Bank, N.A.
One Mellon Center
Room 4530
Pittsburgh, PA 15258
Attn: Mark F. Johnston
Telephone No: 412-236-2793
Facsimile No: 412-236-1914
Annex 1
Schedule of Commitments
The Bank of Nova Scotia $35,000,000
Bank of America, N.A. $35,000,000
JP Morgan Chase Bank, N.A. $30,000,000
SunTrust Bank, Inc. $30,000,000
Citibank, N.A. $30,000,000
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch $22,000,000
Credit Suisse, Caymans Island Branch $22,000,000
US Bank, N.A. $22,000,000
PNC Bank, National Association $22,000,000
Fifth Third Bank $22,000,000
National City Bank of Kentucky $15,000,000
Mellon Bank, N.A. $15,000,000
---------------
Total: $300,000,000.00
EXHIBIT A
FORM OF NOTE
$___________________________________ __________ ___, 200__
FOR VALUE RECEIVED, ASHLAND INC., a Kentucky corporation (the
"Borrower") hereby promises to pay to the order of
______________________________ (the "Lender"), at the Lending Office of THE
BANK OF NOVA SCOTIA (the "Administrative Agent"), the principal sum of
_____________ Dollars ($____________) (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Loans made by the Lender to
the Borrower under the Credit Agreement, as hereinafter defined), in lawful
money of the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement,
and to pay interest on the unpaid principal amount of each such Loan, at
such office, in like money and funds, for the period commencing on the date
of such Loan until such Loan shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate, Interest Period and maturity of
each Loan made by the Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, may be endorsed by the
Lender on the schedules attached hereto or any continuation thereof or on
any separate record maintained by the Lender.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of April 9, 2007 (as amended, supplemented, amended and restated
or otherwise modified from time to time, the "Credit Agreement), among the
Borrower, the lenders from time to time party thereto (including the
Lender), and The Bank of Nova Scotia, as the Administrative Agent, and
evidences Loans made by the Lender thereunder. Capitalized terms used in
this Note have the respective meanings assigned to them in the Credit
Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled
to the benefits provided for in the Credit Agreement. The Credit Agreement
provides for the acceleration of the maturity of this Note upon the
occurrence of certain events, for prepayments of Loans upon the terms and
conditions specified therein and other provisions relevant to this Note.
Exhibit A
THIS NOTE (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF LAWS
RULES THEREOF.
ASHLAND INC.
By: /s/
-------------------------------------------
Name:
Title:
2
Exhibit A
EXHIBIT B-1
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST
__________ ___, 200__
ASHLAND INC., a Kentucky corporation (the "Borrower"), pursuant to the
Credit Agreement, dated as of April 9, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the "Credit
Agreement), among the Borrower, the Lenders from time to time party
thereto, and The Bank of Nova Scotia, as the Administrative Agent, hereby
makes the requests indicated below (unless otherwise defined herein,
capitalized terms are defined in the Credit Agreement):
___ 1. Loans:
(a) Aggregate amount of new Loans to be $____________;
(b) Requested funding date is __________ __, 200_;
(c) $____________ of such borrowings are to be Eurodollar Loans;
$____________ of such borrowings are to be Base Rate Loans; and
(d) Length of Interest Period for Eurodollar Loans is: _____________.
___ 2. Eurodollar Loan Continuation for Eurodollar Loans (Interest
Period maturing on __________ ___, 200__):
(a) Aggregate amount to be continued as Eurodollar Loans is $_______;
(b) Aggregate amount to be converted to Base Rate Loans is $________;
(c) Length of Interest Period for continued Eurodollar Loans is ____.
___ 3. Conversion for Base Rate Loans to Eurodollar Loans:
(a) Aggregate amount to be converted to Eurodollar Loans is $_______;
(b) Length of Interest Period for continued Eurodollar Loans is ____.
___ 4. Conversion of outstanding Eurodollar Loans to Base Rate Loans:
Convert $______ of the outstanding Eurodollar Loans with Interest
Period maturing on __________ ___, 200__, to Base Rate Loans.
Exhibit B-1
The undersigned certifies that he is the _____________________ of the
Borrower, and that as such he is authorized to execute this certificate on
behalf of the Borrower. The undersigned further certifies, represents and
warrants on behalf of the Borrower that the Borrower is entitled to receive
the requested borrowing, continuation or conversion under the terms and
conditions of the Credit Agreement.
ASHLAND INC.
By: /s/
-------------------------------------------
Name:
Title:
2
Exhibit B-1
EXHIBIT B-2
FORM OF ISSUANCE REQUEST
The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: _______________
Re: Credit Agreement, dated as of April 9, 2007 (as amended,
supplemented, amended and restated or otherwise modified from
time to time, the "Credit Agreement"), among Ashland Inc. (the
"Borrower"), the various financial institutions as are or may
from time to time thereafter become parties thereto (the
"Lenders") and The Bank of Nova Scotia (the "Administrative
Agent").
Ladies and Gentlemen:
This Issuance Request is delivered to you pursuant to Section 2.03 of
the Credit Agreement. Unless otherwise defined herein, terms used herein
have the meanings assigned to them in the Credit Agreement.
The Borrower hereby requests that on _________, 20__ (the "Date of
Issuance") _______________ (the "Issuer") (1)[issue a [Standby Letter of
Credit] [Documentary Letter of Credit] in the initial Stated Amount of
$_______________ with a Stated Expiry Date (as defined therein) of
______________, 20__] [extend the Stated Expiry Date of a Standby Letter of
Credit (as defined under Irrevocable Standby Letter of Credit No.__, issued
on __________________________, 20 __, in the initial Stated Amount of
$______________) to a revised Stated Expiry Date (as defined therein) of
_________________, 20__].
The beneficiary of the requested (1)[Standby Letter of Credit]
[Documentary Letter of Credit] will be (2)_______________________________,
and such (1)[Standby Letter of Credit] [Documentary Letter of Credit] will
be in support of (3)________________________________.
- ------------------------
1 Insert as appropriate.
2 Insert name and address of beneficiary.
3 Insert description of supported Indebetedness or other obligations and
name of agreement to which it relates.
Exhibit B-2
The Borrower hereby acknowledges that, pursuant to Section 6.02 of the
Credit Agreement, each of the delivery of this Issuance Request and the
(4)[[issuance][extension] of the Standby Letter of Credit] [issuance of the
Documentary Letter of Credit] requested hereby constitutes a representation
and warranty by the Borrower that, on such date of (4)[issuance]
[extension] all statements set forth in Section 6.02 are true and correct
in all respects.
The Borrower agrees that if, prior to the time of the
(1)[[issuance][extension] of the Standby Letter of Credit] [issuance of the
Documentary Letter of Credit] requested hereby, any matter certified to
herein by it will not be true and correct at such time as if then made, it
will immediately so notify the Administrative Agent. Except to the extent,
if any, that prior to the time of the issuance or extension requested
hereby the Administrative Agent and the Issuer shall receive written notice
to the contrary from the Borrower, each matter certified to herein shall be
deemed to be certified at the date of such issuance or extension.
IN WITNESS WHEREOF, the Borrower has caused this request to be
executed and delivered by its Authorized Officer this __ day of __________,
20__.
ASHLAND INC.
By: /s/
-------------------------------------------
Name:
Title:
- ------------------------
1 Insert as appropriate.
4 Insert "extension" only with regards to a Standby Letter of Credit.
2
Exhibit B-2
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is the ________________ of
ASHLAND INC., a Kentucky corporation (the "Borrower") and that as such he
is authorized to execute this certificate on behalf of the Borrower. With
reference to the Credit Agreement, dated as of April 9, 2007 (as amended,
supplemented, amended and restated or otherwise modified from time to time,
the "Credit Agreement), among the Borrower, the Lenders, and The Bank of
Nova Scotia, as the Administrative Agent, the undersigned represents and
warrants as follows (each capitalized term used herein having the same
meaning given to it in the Credit Agreement unless otherwise specified):
(a) The representations and warranties of the Borrower contained in
Article VII of the Credit Agreement and otherwise made in writing by or on
behalf of the Borrower pursuant to the Credit Agreement were true and
correct when made, and are repeated at and as of the time of delivery
hereof and are true and correct at and as of the time of delivery hereof,
except to the extent such representations and warranties are expressly
limited to an earlier date or the Majority Lenders have expressly consented
in writing to the contrary.
(b) The Borrower has performed and complied with all agreements and
conditions contained in the Credit Agreement required to be performed or
complied with by it prior to or at the time of delivery hereof.
(c) Since [_____________, ____] there has not occurred a material
adverse change in the financial position or results of operation of the
Borrower and its Subsidiaries taken as a whole.
(d) There exists as of the date hereof, and, after giving effect to
the Loan or Loans (if any) with respect to which this certificate is being
delivered, will exist, no Default under the Credit Agreement.
(e) All financial statements furnished herewith or heretofore pursuant
to Sections 8.01[(a)] [(b)] have been prepared in accordance with GAAP.
(f) [CERTIFICATION AND CALCULATION AS TO LEVERAGE RATIO]
Exhibit C
EXECUTED AND DELIVERED this _____ day of __________, 200__.
ASHLAND INC.
By: /s/
-------------------------------------------
Name:
Title:
2
Exhibit C
EXHIBIT D
FORM OF LEGAL OPINION
April 9, 2007
To the Lenders and the Administrative Agent
hereinafter referred to
c/o The Bank of Nova Scotia, as the
Administrative Agent
One Liberty Plaza
New York, New York 10006
Re: Credit Agreement
Ladies and Gentlemen:
I am a Senior Counsel with Ashland Inc. (the "Company"), and have
advised the Company in connection with the Credit Agreement, dated as of
April 9, 2007 (the "Credit Agreement"), among the Company, the lenders from
time to time signatory thereto (collectively, the "Lenders") and The Bank
of Nova Scotia, as the Administrative Agent. This opinion is rendered
pursuant to Section 6.01(vi) of the Credit Agreement. Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
to them in the Credit Agreement.
In connection with this opinion, I have examined or caused to be
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or advisable in
order to deliver this opinion. In said examination I have assumed the
genuineness of all signatures (other than the signature of the person
executing the Credit Agreement on behalf of the Company), the legal
capacity of natural persons, the authenticity of all documents submitted to
me as originals, the conformity to original documents of all documents
submitted to me as certified or photostatic copies, and the authenticity of
the originals of such copies. In giving this opinion I have relied as to
matters of fact upon certificates of officers of the Company, certificates
of public officials, the representations of the Company in Sections 7.07
and 7.08 of the Credit Agreement and the representations of the Lenders in
Section 4.06(d) of the Credit Agreement.
Based upon and subject to the foregoing, and the limitations,
qualifications and exceptions set forth below, I am of the opinion that:
1. The Company (i) is duly, organized or formed, legally existing and
in good standing under the laws of the Commonwealth of Kentucky, (ii) has
all requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted; and
(iii) is qualified to do business in all jurisdictions in which the nature
of the business conducted by it
Exhibit D
makes such qualification necessary and where failure so to qualify would
have a Material Adverse Effect.
2. Neither the execution and delivery of the Credit Agreement and the
Notes by the Company, nor compliance with the terms and conditions thereof
will conflict with or result in a breach of, or require any consent which
has not been obtained with respect to the Third Restated Articles of
Incorporation or By-laws of the Company, as amended, or any Governmental
Requirement or any indenture or loan or credit agreement or any other
material agreement or instrument to which the Company is a party or by
which it is bound or to which it or its Properties are subject, or
constitute a default under any such indenture, agreement or instrument,
which would materially adversely affect the ability of the Borrower to
perform its obligations under the Credit Agreement or result in the
creation or imposition of any Lien upon any of the revenues or assets of
the Company or any Subsidiary pursuant to the terms of any such indenture,
agreement or instrument.
3. The Company has all necessary power and authority to execute,
deliver and perform its obligations under the Credit Agreement and the
Notes; and the execution, delivery and performance by the Company of the
Credit Agreement and the Notes have been duly authorized by all necessary
action on its part; and the Company has duly executed and delivered the
Credit Agreement and the Notes; and the Credit Agreement and the Notes
constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms.
4. Except as have been previously obtained, no authorizations,
approvals or consents of, and no filings or registrations with, any
Governmental Authority are necessary for the execution, delivery or
performance by the Company of the Credit Agreement or the Notes or for the
validity or enforceability thereof.
5. Except as otherwise disclosed, there is no litigation, legal,
administrative or arbitral proceeding, investigation or other action of any
nature pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary the probable outcome of which would
adversely affect the validity or enforceability of the Credit Agreement or
any of the Notes, or would have a Material Adverse Effect.
6. The Company is not an "investment company" nor is it a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940.
7. The Company is not 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," or a "public utility" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
This opinion is qualified to the extent that the binding effect and
enforceability of the agreements and instruments referred to above are
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
and other similar laws of general application in effect from time to time
relating to or affecting the rights of creditors generally and that the
enforceability thereof may be limited by the application of general
principles of equity. Any declaration of default for events of dissolution,
liquidation, bankruptcy, or reorganization of the Company and the exercise
2
Exhibit D
of remedies upon any such declaration, shall be subject to any applicable
limitations of federal bankruptcy law affecting or precluding such
declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization.
In rendering the opinion given above my opinion has been limited to
the laws of the Commonwealth of Kentucky, the State of New York, and the
federal laws of the United States. I am a member of the Bar of the
Commonwealth of Kentucky and do not purport to be an expert on the law of
other jurisdictions or federal laws and have not made any independent
investigation of such other laws. With regard to the laws of the State of
New York which may apply to the Credit Agreement and the Notes, I have
assumed that the laws of the State of New York that customarily apply to
such types of documents in transactions of this kind are not materially
dissimilar to the laws of the Commonwealth of Kentucky; provided, however,
that I express no opinion as to the applicability or enforceability of the
laws of either state regarding commercial paper and negotiable instruments.
With regard to federal laws which may apply to the Credit Agreement and the
Notes, I have relied on other attorneys of the Company who are experts on
such laws.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any person other than Mayer, Brown, Rowe &
Maw LLP without my prior written consent.
Very truly yours,
---------------------------------------
David B. Mattingly
3
Exhibit D
EXHIBIT E
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of __________ __, 200_ (this
"Agreement"), is between: _________________________ (the "Assignor") and
_________________________ (the "Assignee").
RECITALS
A. The Assignor is a party to the Credit Agreement, dated as of April
9, 2007 (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Credit Agreement), among Ashland Inc., a
Kentucky corporation (the "Borrower"), the lenders from time to time party
thereto, and The Bank of Nova Scotia, as the Administrative Agent.
B. The Assignor proposes to sell, assign and transfer to the Assignee,
and the Assignee proposes to purchase and assume from the Assignor, [all][a
portion] of the Assignor's Commitment, outstanding Loans, all on the terms
and conditions of this Agreement.
C. In consideration of the foregoing and the mutual representations
contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Definitions. All capitalized terms used but not defined
herein have the respective meanings given to such terms in the Credit
Agreement.
Section 1.02 Other Definitions. As used herein, the following terms
have the following respective meanings:
"Assigned Interest" shall mean all of Assignor's (in its capacity as a
Lender) rights and obligations under the Credit Agreement in respect of the
Commitment of the Assignor in the principal amount equal to $____________,
and to make Loans under the Commitment and any right to receive payments
for the Loans outstanding under the Commitment assigned hereby of
$____________ (the "Loan Balance"), plus the interest and fees which will
accrue from and after the Assignment Date.
"Assignment Date" shall mean __________ __, 200_.
ARTICLE II
Sale and Assignment
Section 2.01 Sale and Assignment. On the terms and conditions set
forth herein, effective on and as of the Assignment Date, the Assignor
hereby sells, assigns and transfers to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, all of the right,
Exhibit E
title and interest of the Assignor in and to, and all of the obligations of
the Assignor in respect of, the Assigned Interest. Such sale, assignment
and transfer is without recourse and, except as expressly provided in this
Agreement, without representation or warranty.
Section 2.02 Assumption of Obligations. The Assignee agrees with the
Assignor (for the express benefit of the Assignor and the Borrower) that
the Assignee will, from and after the Assignment Date, perform all of the
obligations of the Assignor in respect of the Assigned Interest. From and
after the Assignment Date: (a) the Assignor shall be released from the
Assignor's obligations in respect of the Assigned Interest, and (b) the
Assignee shall be entitled to all of the Assignor's rights, powers and
privileges under the Credit Agreement in respect of the Assigned Interest.
Section 2.03 Consent by Administrative Agent. By executing this
Agreement as provided below, in accordance with Section 12.06(b) of the
Credit Agreement, the Administrative Agent hereby acknowledges notice of
the transactions contemplated by this Agreement and consents to such
transactions.
ARTICLE III
Payments
Section 3.01 Payments. As consideration for the sale, assignment and
transfer contemplated by Section 2.01 hereof, the Assignee shall, on the
Assignment Date, assume Assignor's obligations in respect of the Assigned
Interest and pay to the Assignor amounts equal to the Loan Balance, if any.
An amount equal to all accrued and unpaid interest and fees shall be paid
to the Assignor as provided in Section 3.02 (iii) below. Except as
otherwise provided in this Agreement, all payments hereunder shall be made
in Dollars and in immediately available funds, without setoff, deduction or
counterclaim.
Section 3.02 Allocation of Payments. The Assignor and the Assignee
agree that (i) the Assignor shall be entitled to any payments of principal
with respect to the Assigned Interest made prior to the Assignment Date,
together with any interest and fees with respect to the Assigned Interest
accrued prior to the Assignment Date, (ii) the Assignee shall be entitled
to any payments of principal with respect to the Assigned Interest made
from and after the Assignment Date, together with any and all interest and
fees with respect to the Assigned Interest accruing from and after the
Assignment Date, and (iii) the Administrative Agent is authorized and
instructed to allocate payments received by it for account of the Assignor
and the Assignee as provided in the foregoing clauses. Each party hereto
agrees that it will hold any interest, fees or other amounts that it may
receive to which the other party hereto shall be entitled pursuant to the
preceding sentence for account of such other party and pay, in like money
and funds, any such amounts that it may receive to such other party
promptly upon receipt.
Section 3.03 Delivery of Notes. Promptly following the receipt by the
Assignor of the consideration required to be paid under Section 3.01
hereof, the Assignor shall, in the manner contemplated by Section 12.06(b)
of the Credit Agreement, (i) deliver to the Administrative Agent (or its
counsel) the Notes held by the Assignor and (ii) notify the Administrative
Agent to request that the Borrower execute and deliver new Notes to the
Assignor, if Assignor continues to be a Lender, and the Assignee, dated the
Assignment Date in respective principal amounts
2
Exhibit E
equal to the respective Commitments of the Assignor (if appropriate) and
the Assignee after giving effect to the sale, assignment and transfer
contemplated hereby.
Section 3.04 Further Assurances. The Assignor and the Assignee hereby
agree to execute and deliver such other instruments, and take such other
actions, as either party may reasonably request in connection with the
transactions contemplated by this Agreement.
ARTICLE IV
Conditions Precedent
Section 4.01 Conditions Precedent. The effectiveness of the sale,
assignment and transfer contemplated hereby is subject to the satisfaction
of each of the following conditions precedent:
(a) the execution and delivery of this Agreement by the Assignor and
the Assignee;
(b) the receipt by the Assignor of the payment required to be made by
the Assignee under Section 3.01 hereof; and
(c) the acknowledgment and consent by the Administrative Agent
contemplated by Section 2.04 hereof.
ARTICLE V
Representations and Warranties
Section 5.01 Representations and Warranties of the Assignor.(1) The
Assignor represents and warrants to the Assignee as follows:
(a) it has all requisite power and authority, and has taken all action
necessary to execute and deliver this Agreement and to fulfill its
obligations under, and consummate the transactions contemplated by, this
Agreement;
(b) the execution, delivery and compliance with the terms hereof by
Assignor and the delivery of all instruments required to be delivered by it
hereunder do not and will not violate any Governmental Requirement
applicable to it;
(c) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor,
enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and all
actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained;
- ----------------------
1 To be conformed to any revised representations and warranties in the
Credit Agreement.
3
Exhibit E
(e) the Assignor has good title to, and is the sole legal and
beneficial owner of, the Assigned Interest, free and clear of all Liens,
claims, participations or other charges of any nature whatsoever; and
(f) the transactions contemplated by this Agreement are commercial
banking transactions entered into in the ordinary course of the banking
business of the Assignor.
Section 5.02 Disclaimer. Except as expressly provided in Section 5.01
hereof, the Assignor does not make any representation or warranty, nor
shall it have any responsibility to the Assignee, with respect to the
accuracy of any recitals, statements, representations or warranties
contained in the Credit Agreement or in any certificate or other document
referred to or provided for in, or received by any Lender under, the Credit
Agreement, or for the value, validity, effectiveness, genuineness,
execution, effectiveness, legality, enforceability or sufficiency of the
Credit Agreement, the Notes or any other document referred to or provided
for therein or for any failure by the Borrower or any other Person (other
than Assignor) to perform any of its obligations thereunder or for the
existence, value, perfection or priority of any collateral security or the
financial or other condition of the Borrower or the Subsidiaries or any
other obligor or guarantor, or any other matter relating to the Credit
Agreement or any extension of credit thereunder.
Section 5.03 Representations and Warranties of the Assignee. The
Assignee represents and warrants to the Assignor as follows:
(a) it has all requisite power and authority, and has taken all action
necessary to execute and deliver this Agreement and to fulfill its
obligations under, and consummate the transactions contemplated by, this
Agreement;
(b) the execution, delivery and compliance with the terms hereof by
Assignee and the delivery of all instruments required to be delivered by it
hereunder do not and will not violate any Governmental Requirement
applicable to it;
(c) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee,
enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and all
actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained;
(e) the Assignee has fully reviewed the terms of the Credit Agreement
and has independently and without reliance upon the Assignor, and based on
such information as the Assignee has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement;
(f) the Assignee hereby affirms that the representations contained in
Section 4.06(d)(i)(1) of the Credit Agreement are true and accurate as to
Assignee. If Section 4.06(d)(i)(2) is applicable to the Assignee, Assignee
shall promptly deliver to the
4
Exhibit E
Administrative Agent and the Borrower such certifications as are required
thereby to avoid the withholding taxes referred to in Section 4.06; and
(g) the transactions contemplated by this Agreement are commercial
banking transactions entered into in the ordinary course of the banking
business of the Assignee.
ARTICLE VI
Miscellaneous
Section 6.01 Notices. All notices and other communications provided
for herein (including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made
in writing (including, without limitation, by telex or facsimile) to the
intended recipient at its "Address for Notices" specified below its name on
the signature pages hereof or, as to either party, at such other address as
shall be designated by such party in a notice to the other party.
Section 6.02 Amendment, Modification or Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in
writing signed by the Assignor and the Assignee, and consented to by the
Administrative Agent.
Section 6.03 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The representations and warranties made
herein by the Assignee are also made for the benefit of the Administrative
Agent and the Borrower, and the Assignee agrees that the Administrative
Agent and the Borrower are entitled to rely upon such representations and
warranties.
Section 6.04 Assignments. Neither party hereto may assign any of its
rights or obligations hereunder except in accordance with the terms of the
Credit Agreement.
Section 6.05 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 6.06 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be identical and all of which,
taken together, shall constitute one and the same instrument, and each of
the parties hereto may execute this Agreement by signing any such
counterpart.
Section 6.07 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
Section 6.08 Expenses. To the extent not paid by the Borrower pursuant
to the terms of the Credit Agreement, each party hereto shall bear its own
expenses in connection with the execution, delivery and performance of this
Agreement.
Section 6.09 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
5
Exhibit E
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed and delivered as of the date first above written.
[NAME OF ASSIGNOR]
By: /s/
-------------------------------------------
Name:
Title:
Address for Notices:
______________________________________________
______________________________________________
______________________________________________
Facsimile No: _______________________________
Telephone No: _______________________________
Attention: _______________________________
[NAME OF ASSIGNOR]
By: /s/
-------------------------------------------
Name:
Title:
Address for Notices:
______________________________________________
______________________________________________
______________________________________________
Facsimile No: _______________________________
Telephone No: _______________________________
Attention: _______________________________
6
Exhibit E
ACKNOWLEDGED AND CONSENTED TO:
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
By:
-------------------------------------------
Name:
Title:
[-----------------]
as the Issuer
[ASHLAND INC.
By:
-------------------------------------------
Name:
Title:]*
- ---------------------
* Borrower to provide consent so long as no Default or Event of Default
exists.
7
Exhibit E
SCHEDULE 2.03(G)
EXISTING LETTERS OF CREDIT
Applicant Issuer L/C No. Beneficiary Currency Amount Expiry
Date
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashmont Insurance SunTrust Bank, F842199 Insurance Company of NA US $5,839,000 11/19/07
Company Inc. Inc.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashmont Insurance SunTrust Bank, F846295 Integon General US $50,000 02/22/08
Company Inc. Inc. Insurance Co.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashmont Insurance SunTrust Bank, F842345 Royal and Sun Alliance US $16,100,000 12/11/07
Company Inc. Ins. PLC
Inc.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashland Inc. SunTrust Bank, F842201 Insurance Company of NA US $37,017,000 11/19/07
Inc.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashland Inc. SunTrust Bank, F846408 Liberty Mutual Ins. US $117,300 05/11/07
Inc. Company
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashland Inc. SunTrust Bank, F842318 Insurance Company of NA US $26,168,000 12/09/07
Inc.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashland Distribution SunTrust Bank, F846214 PA Dept. of US $65,000 07/18/07
(division of Ashland Inc. Environmental Protection
Inc.)
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Ashland Branded SunTrust Bank, F846296 Citicorp US 20,000,000 07/04/08
Finance Inc. Inc.
- ---------------------- ------------------- -------------- -------------------------- ------------- ---------------- -----------
Schedule 2.03(g)
SCHEDULE 7.03
LITIGATION
Please refer to the Borrower's public filings with the SEC for a
disclosure of litigation matters.
Schedule 7.03
SCHEDULE 7.08
MULTIEMPLOYER PLANS
- ------------------------------------------------------------------------------------------------------------------------------
Contributions on a Calendar Year Basis for the Prior 5 Calendar Years
Multiemployer Pension Plan ------------------------------------------------------------------------------------------------
Names(1) 2006 2005 2004 2003 2002
- ----------------------------- ------------------ ------------------ ------------------- ------------------ -------------------
WESTERN CONFERENCE OF $201,649.81 $198,208.50 $187,521.64 $175,161.45 $187,129.98
TEAMSTERS FAIRFIELD CA
- ----------------------------- ------------------ ------------------ ------------------- ------------------ -------------------
CENTRAL STATES LOCAL #618 $126,356.00 $122,512.00 $111,600.00 $110,360.00 $93,578.00
ST. LOUIS
- ----------------------------- ------------------ ------------------ ------------------- ------------------ -------------------
CENTRAL STATES LOCAL #89 $41,940.00 $39,780.00 $39,780.00 $43,180.00 $42,755.00
LOUISVILLE
- ----------------------------- ------------------ ------------------ ------------------- ------------------ -------------------
CENTRAL STATES LOCAL #781 $211,978.00 $217,462.00 $184,012.52 $160,456.00 $140,290.00
CHICAGO
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INTERNATIONAL BROTHERHOOD $262,080.00 $254,919.00 $196,508.00 $186,809.00 $185,951.00
OF TEAMSTERS LOCAL #705
CHICAGO
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(1) The Central States Southeast and Southwest Areas Pension Fund assessed
partial withdrawal liability for a curtailment at the South Bend facility
regarding Teamsters Local 364. That liability was paid in full for $179,340
in June 2003.
On August 29, 2003, the facility where the Central Pennsylvania Teamsters
Local 773 (Easton, Pennsylvania) was located was sold. This resulted in the
assessment of withdrawal liability by the Central Pennsylvania Teamsters
Pension Fund. That liability was paid in full for $630,000 in May 2005.
Schedule 7.08
SCHEDULE 7.09
TAXES
None.
Schedule 7.09
SCHEDULE 7.14
ENVIRONMENTAL MATTERS
None.
Schedule 7.14