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EXHIBIT 4.3
EXECUTION COPY
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LONG TERM CREDIT AGREEMENT
Dated as of September 29, 1999
among
TENNECO PACKAGING INC.,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent,
BANK ONE, NA
and
BANQUE NATIONALE DE PARIS,
as Co-Documentation Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Book Manager
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms......................................................................................2
1.2 Other Interpretive Provisions.............................................................................20
1.3 Accounting Principles.....................................................................................21
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments..........................................................................22
2.2 Loan Accounts.............................................................................................22
2.3 Procedure for Committed Borrowing.........................................................................23
2.4 Conversion and Continuation Elections for Committed Borrowings............................................23
2.5 Bid Borrowings............................................................................................25
2.6 Procedure for Bid Borrowings..............................................................................25
2.7 Voluntary Termination or Reduction of Commitments.........................................................29
2.8 Optional Prepayments......................................................................................30
2.9 Repayment.................................................................................................30
2.10 Interest..................................................................................................30
2.11 Fees......................................................................................................31
(a Arrangement, Agency Fees............................................................................31
(b Facility Fees......................................................................................32
(c Utilization Fees...................................................................................32
2.12 Computation of Fees and Interest..........................................................................32
2.13 Payments by the Company...................................................................................33
2.14 Payments by the Lenders to the Administrative Agent.......................................................33
2.15 Sharing of Payments, Etc..................................................................................34
2.16 Swing Line Commitment.....................................................................................36
2.17 Borrowing Procedures for Swing Line Loans.................................................................36
2.18 Prepayment or Refunding of Swing Line Loans...............................................................36
2.19 Participations in Swing Line Loans........................................................................37
2.20 Participation Obligations Unconditional...................................................................38
2.21 Conditions to Swing Line Loans............................................................................38
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes.....................................................................................................39
3.2 Illegality................................................................................................40
3.3 Increased Costs and Reduction of Return...................................................................41
3.4 Funding Losses............................................................................................42
3.5 Inability to Determine Rates..............................................................................43
3.6 Certificates of Lenders...................................................................................43
3.7 Mitigation................................................................................................43
3.8 Substitution of Lenders...................................................................................43
3.9 Survival..................................................................................................44
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness...............................................................................44
(a Agreement and Notes............................................................................44
(b Resolutions; Incumbency........................................................................44
(c Organization Documents.........................................................................45
(d Payment of Fees and Expenses...................................................................45
(e Tax Ruling or Opinion..........................................................................45
(f Other Documents................................................................................45
4.2 Conditions to Initial Borrowing...........................................................................45
(a Effective Date.................................................................................45
(b Consummation of Spin-Off.......................................................................45
(c Consents and Approvals.........................................................................46
(d Payments of Fees and Expenses..................................................................46
(e Legal Opinions.................................................................................46
(f Certificate....................................................................................46
(g Other Documents................................................................................47
4.3 Conditions to All Borrowings..............................................................................47
(a Notice.........................................................................................47
(b Continuation of Representations and
Warranties.....................................................................................47
(c No Default.....................................................................................47
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Existence and Power.............................................................................47
5.2 Corporate Authorization; No Contravention.................................................................48
5.3 Governmental Authorization................................................................................48
5.4 Binding Effect............................................................................................48
5.5 Litigation................................................................................................49
5.6 No Default................................................................................................49
5.7 ERISA Compliance..........................................................................................49
5.8 Use of Proceeds; Margin Regulations.......................................................................50
5.9 Title to Properties.......................................................................................50
5.10 Taxes.....................................................................................................50
5.11 Financial Condition.......................................................................................50
5.12 Environmental Matters.....................................................................................51
5.13 Regulated Entities........................................................................................51
5.14 No Burdensome Restrictions................................................................................51
5.15 Copyrights, Patents, Trademarks and Licenses, etc. .......................................................51
5.16 Subsidiaries..............................................................................................52
5.17 Insurance.................................................................................................52
5.18 Year 2000 Problem.........................................................................................52
5.19 Full Disclosure...........................................................................................52
5.20 Solvency, etc.............................................................................................53
5.21 Labor Relations...........................................................................................53
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ARTICLE VI
AFFIRMATIVE COVENANTS
6.1 Financial Statements......................................................................................53
6.2 Certificates; Other Information...........................................................................54
6.3 Notices...................................................................................................54
6.4 Preservation of Corporate Existence, Etc..................................................................56
6.5 Maintenance of Property...................................................................................56
6.6 Insurance.................................................................................................56
6.7 Payment of Obligations....................................................................................56
6.8 Compliance with Laws......................................................................................57
6.9 Compliance with ERISA.....................................................................................57
6.10 Inspection of Property and Books and Records..............................................................57
6.11 Environmental Laws........................................................................................57
6.12 Use of Proceeds...........................................................................................57
6.13 Change in Business........................................................................................58
ARTICLE VII
NEGATIVE COVENANTS
7.1 Financial Condition Covenants.............................................................................58
(a Minimum Interest Coverage Ratio.....................................................................58
(b Maximum Total Debt to EBITDA Ratio..................................................................58
7.2 Limitation on Liens.......................................................................................58
7.3 Restrictions on Subsidiaries..............................................................................60
7.4 Consolidation, Mergers and Sales of Assets................................................................61
7.5 Limitation on Subsidiary Indebtedness.....................................................................61
7.6 Transactions with Affiliates..............................................................................61
7.7 Use of Proceeds...........................................................................................61
7.8 ERISA.....................................................................................................62
7.9 Securitization Transactions...............................................................................62
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Event of Default..........................................................................................62
(a Non-Payment....................................................................................62
(b Representation or Warranty.....................................................................62
(c Specific Defaults..............................................................................62
(d Other Defaults.................................................................................63
(e Cross-Default..................................................................................63
(f Insolvency; Voluntary Proceedings..............................................................63
(g Involuntary Proceedings........................................................................63
(h ERISA..........................................................................................64
(i Monetary Judgments.............................................................................64
(j Non-Monetary Judgments.........................................................................64
(k Change of Control..............................................................................64
8.2 Remedies..................................................................................................64
8.3 Notice of Defaults........................................................................................65
8.4 Rights Not Exclusive......................................................................................65
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ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1 Appointment and Authorization; "Administrative Agent".....................................................66
9.2 Delegation of Duties......................................................................................66
9.3 Liability of Administrative Agent.........................................................................66
9.4 Reliance by Administrative Agent..........................................................................67
9.5 Notice of Default.........................................................................................68
9.6 Credit Decision...........................................................................................68
9.7 Indemnification of Administrative Agent...................................................................69
9.8 Administrative Agent in Individual Capacity...............................................................69
9.9 Successor Administrative Agent............................................................................69
9.10 Withholding Tax...........................................................................................70
9.11 Other Agents..............................................................................................72
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers....................................................................................72
10.2 Notices...................................................................................................73
10.3 No Waiver; Cumulative Remedies............................................................................74
10.4 Costs and Expenses........................................................................................75
10.5 Company Indemnification...................................................................................75
10.6 Payments Set Aside........................................................................................76
10.7 Successors and Assigns....................................................................................76
10.8 Assignments, Participations, etc..........................................................................76
10.9 Confidentiality...........................................................................................79
10.10 Set-off...................................................................................................80
10.11 Notification of Addresses, Lending Offices, Etc...........................................................80
10.12 Counterparts..............................................................................................80
10.13 Severability..............................................................................................80
10.14 No Third Parties Benefited................................................................................80
10.15 Governing Law and Jurisdiction............................................................................80
10.16 Waiver of Jury Trial......................................................................................81
10.17 Entire Agreement..........................................................................................81
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SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 5.12 Environmental Matters
Schedule 5.16 Subsidiaries and Minority Interests
Schedule 5.21 Labor Relations
Schedule 7.2 Permitted Liens
Schedule 10.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Committed Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Competitive Bid Request
Exhibit D Form of Invitation for Competitive Bid
Exhibit E Form of Competitive Bid
Exhibit F Form of Compliance Certificate
Exhibit G Form of Opinion of Counsel to the Company
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Promissory Note
Exhibit J Form of Notice of Swing Line Loan
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LONG TERM CREDIT AGREEMENT
This LONG TERM CREDIT AGREEMENT is entered into as of September 29, 1999,
among TENNECO PACKAGING INC., a Delaware corporation (the "Company", the
several financial institutions from time to time party to this Agreement
(collectively the "Lenders"; individually each a "Lender", BANK OF AMERICA,
N.A., as administrative agent for the Lenders, CREDIT SUISSE FIRST BOSTON, as
Syndication Agent, and BANK ONE, NA and BANQUE NATIONALE DE PARIS, as
Co-Documentation Agents.
INTRODUCTION
1. Pursuant to a Distribution Agreement (the "Distribution Agreement"
to be entered into between Tenneco Inc. ("Tenneco" and the Company, which is a
wholly-owned subsidiary of Tenneco, Tenneco will agree to separate and divide
its existing businesses so that (a the assets, liabilities and operations of
its packaging business and administrative services operations (collectively, the
"Packaging Business" will be owned directly and indirectly by the Company and
(b the assets, liabilities and operations of its automotive business will be
directly and indirectly owned by Tenneco. Tenneco will be renamed Tenneco
Automotive Inc. immediately following the distribution described in the
succeeding paragraph.
2. Following the separation and division described in paragraph 1,
Tenneco shall distribute, as a dividend to the holders of the shares of its
common stock, all of the capital stock of the Company (the transactions
described in paragraph 1 above and this paragraph 2, as more particularly
described in the Company's filing on Form 10 and Form S-4, the "Spin-Off".
3. The Company intends to sell the 43% of the common stock of Packaging
Corporation of America, a Delaware corporation ("PCA", owned by it to the
public in a registered public offering (the "PCA IPO". Such sale is not a
condition to the Spin-Off and may take place before or after the Spin-Off (and
may be at such time and price as is permitted by market conditions.
4. Pursuant to the Distribution Agreement and in connection with the
Spin-Off and any PCA IPO, certain pre-existing indebtedness of the Company,
Tenneco and their respective subsidiaries will be paid in full, canceled or
realigned through some combination of tender offers, exchange offers,
prepayments or other forms of debt retirement.
5. Tenneco has requested that the Lenders and the Administrative Agent
enter into this Agreement in order to make
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available to the Company a $750,000,000 credit facility on the terms and
conditions set forth herein.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
I.1 Certain Defined Terms. The following terms have the following meanings:
Absolute Rate - see subsection 2.6(c(ii(D.
Absolute Rate Auction means a solicitation of Competitive Bids setting
forth Absolute Rates pursuant to Section 2.6.
Absolute Rate Bid Loan means a Bid Loan that bears interest at a rate
determined with reference to the Absolute Rate.
Acquisition means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a the
acquisition of all or substantially all of the assets of a Person, or of
all or substantially all of any business or division of a Person, (b the
acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c a merger or consolidation
or any other combination with another Person (other than a Person that is a
Subsidiary provided that the Company or the Subsidiary is the surviving
entity.
Adjusted Pro Rata Share means for any Lender at any time the
proportion (expressed as a decimal, rounded to the ninth decimal place
which such Lender's Commitment constitutes of the Combined Commitments (or,
after the Commitments have terminated, which (i the principal amount of
such Lender's Loans plus (without duplication the participation of such
Lender in (or, in the case of the Swing Line Lender, its unparticipated
portion of the principal amount of all Swing Line Loans constitutes of
(ii the aggregate principal amount of all Loans.
Administrative Agent means Bank of America in its capacity as agent
for the Lenders hereunder, and any successor agent arising under Section
9.9.
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Administrative Agent-Related Persons means Bank of America and any
successor agent arising under Section 9.9, together with their respective
Affiliates (including, in the case of Bank of America, BAS, and the
officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
Administrative Agent's Payment Office means the address for payments
set forth on Schedule 10.2 or such other address as the Administrative
Agent may from time to time specify by notice to the Company and the
Lenders.
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities or membership interests,
by contract or otherwise; provided that none of PCA, Tenneco, Tenneco
Automotive Inc. or any Subsidiary of Tenneco Automotive Inc. (except for
any thereof that are part of the Tenneco Packaging Group shall be an
Affiliate of the Company for purposes of this Agreement.
Agreement means this Credit Agreement.
Applicable Margin - see Schedule 1.1.
Assignee - see subsection 10.8(a.
Assignment and Acceptance - see subsection 10.8(a.
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
Bank of America means Bank of America, N.A., a national banking
association.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq..
BAS means Bank of America Securities LLC, a Delaware limited liability
company.
Base Rate means, for any day, the higher of: (a 0.50% per annum above
the latest Federal Funds Rate; or (b the rate of interest in effect for
such day as publicly announced from time to time by Bank of America, as its
"prime", "reference" or equivalent rate. (The "prime",
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"reference" or equivalent rate is a rate set by Bank of America based upon
various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below such
announced rate. Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified
in the public announcement of such change.
Base Rate Committed Loan means a Committed Loan that bears interest
based on the Base Rate.
Bid Borrowing means a Borrowing hereunder consisting of one or more
Bid Loans made to the Company on the same day by one or more Lenders.
Bid Loan means a Loan by a Lender to the Company under Section 2.6,
which may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
Borrowing means a borrowing hereunder consisting of Committed Loans of
the same Type, or Bid Loans, made to the Company on the same day by one or
more Lenders under Article II and, other than in the case of Base Rate
Committed Loans, having the same Interest Period. A Borrowing may be a Bid
Borrowing or a Committed Borrowing.
Borrowing Date means any date on which a Borrowing occurs under
Section 2.3 or 2.6 or a Swing Line Loan is made under Section 2.16.
Business Day means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or Charlotte, North Carolina are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings in
Dollars are carried on in the London interbank market.
Capital Adequacy Regulation means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule
or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a
bank.
Capital Lease means, with respect to any Person, any lease of (or
other agreement conveying the right to use any real or personal property
by such Person that, in conformity
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with GAAP, is accounted for as a capital lease on the balance sheet of such
Person.
Change of Control means that (a any Person or group (within the
meaning of Rule 13d-5 of the SEC under the Exchange Act, other than
Tenneco prior to the date of the Spin-Off, shall have beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the SEC of 25% or more of
the Voting Stock of the Company or (b a majority of the members of the
Board of Directors of the Company shall cease to be Continuing Members.
Code means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
Combined Commitments means the amount of the combined Commitments of
all Lenders. As of the Effective Date, the amount of the Combined
Commitments is $750,000,000.
Combined Outstandings means the aggregate principal amount of all
outstanding Loans (whether Committed Loans, Bid Loans or Swing Line Loans.
Commitment - see Section 2.1.
Committed Borrowing means a Borrowing hereunder consisting of
Committed Loans made by the Lenders ratably according to their respective
Pro Rata Shares.
Committed Loan means a Loan by a Lender to the Company under Section
2.1, which may be a Base Rate Committed Loan or an Offshore Rate Committed
Loan (each a "Type" of Committed Loan.
Company - see the Preamble.
Competitive Bid means an offer by a Lender to make a Bid Loan in
accordance with subsection 2.6(c.
Competitive Bid Request - see subsection 2.6(a.
Compliance Certificate means a certificate substantially in the form
of Exhibit F.
Computation Period means any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
Consolidated EBITDA means, with respect to the Company and its
Subsidiaries for any period of computation thereof during such period, the
sum of, without duplication, (i Consolidated Net Income, plus (ii
Consolidated Interest
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Expense during such period, plus (iii taxes on income during such period,
plus (iv amortization during such period, plus (v depreciation during
such period plus (vi minority interest expense.
Consolidated Interest Expense means, with respect to any period of
computation thereof, the interest expense (net of interest income of the
Company and its Subsidiaries, including (i the amortization of debt
discounts, (ii the amortization of all fees payable in connection with the
incurrence of Indebtedness to the extent included in interest expense, and
(iii the portion of any lease expense incurred in connection with Capital
Leases allocable to interest expense.
Consolidated Net Income means, for any period of computation thereof,
the net income (or loss of the Company and its Subsidiaries on a
consolidated basis for such period, but excluding (i all non-cash
non-recurring gains or losses, (ii for the fiscal year ending December 31,
1999, cash non-recurring charges in an amount not to exceed $50,000,000 and
(iii with respect to any discontinued operations, any gain (or loss
resulting therefrom. For purposes of this definition, and otherwise for
purposes of measuring covenant compliance under Section 7.1, calculations
for fiscal quarters within any Computation Period in which any
discontinuance of operations has occurred, but which ended prior to the
fiscal quarter in which such discontinuance occurred, shall not be restated
to reflect such discontinuance of operations.
Contingent Obligation means, as to any Person, any direct or indirect
liability of such Person, whether or not contingent, (a with respect to
any Indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations" of another Person (the "primary obligor",
including any obligation of such Person (i to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor, (ii
to advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
or (iv otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each a "Guaranty Obligation";
(b with respect to any Surety Instrument issued for the account
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of such Person or as to which such Person is otherwise liable for
reimbursement of drawings or payments; or (c to purchase any materials,
supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or
for such services, shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered. The amount of any Contingent
Obligation shall (a in the case of Guaranty Obligations, be deemed equal
to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and (b in the case of other Contingent Obligations, be equal to
the maximum reasonably anticipated liability in respect thereof.
Continuing Member means a member of the Board of Directors of the
Company who either (a was a member of the Company's Board of Directors on
the Effective Date and has been such continuously thereafter or (b became
a member of such Board of Directors after the Effective Date and whose
election or nomination for election was approved by a vote of the majority
of the Continuing Members then members of the Company's Board of Directors.
Contractual Obligation means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other document to which such Person
is a party or by which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under Section
2.4, the Company (a converts Committed Loans of one Type to the other Type
or (b continues Offshore Rate Committed Loans for a new Interest Period.
Distribution Agreement - see paragraph 1 of the Introduction to this
Agreement.
Dollars, dollars and $ each mean lawful money of the United States.
Effective Date - see Section 4.1.
Eligible Assignee means (a a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b a commercial bank
organized under the laws of any other country which is a member of the
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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, provided that such bank is acting
through a branch or agency located in the United States; and (c a Person
that is primarily engaged in the business of commercial lending and that is
(i a Lender, (iia Subsidiary of a Lender, (iii a Subsidiary of a Person
of which a Lender is a Subsidiary, or (iv a Person of which a Lender is a
Subsidiary.
Environmental Claims means all written claims, however asserted, by
any Governmental Authority alleging potential liability or responsibility
for violation of any Environmental Law or for release to the environment.
Environmental Laws means all federal, state, local or municipal laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative or judicial orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters.
ERISA means the Employee Retirement Income Security Act of 1974, and
the regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not
incorporated under common control with the Company within the meaning of
Section 414(b or (c of the Code (and Sections 414(m and (o of the Code
for purposes of provisions relating to Section 412 of the Code.
ERISA Event means (a a Reportable Event with respect to a Pension
Plan; (b a withdrawal by the Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a(2 of ERISA or a
substantial cessation of operations which is treated as such a withdrawal;
(c a complete or partial withdrawal by the Company or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d the filing of a notice of intent to terminate a Pension
Plan under Section 4041(c of ERISA, the termination of a Multiemployer
Plan under 4041A of ERISA, or the commencement of proceedings by the PBGC
to terminate a Pension Plan or Multiemployer Plan; (e an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer
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Plan; or (f the imposition of any liability under Title IV of ERISA, other
than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Company or any ERISA Affiliate.
Event of Default means any of the events or circumstances specified in
Section 8.1; provided that any requirement of notice or lapse of time (or
both has been satisfied.
Exchange Act means the Securities and Exchange Act of 1934.
Facility Fee Rate - see Schedule 1.1.
Federal Funds Rate means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1% equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank on the Business Day next succeeding such day;
provided that (a if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b
if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to Bank
of America on such day on such transactions as determined by the
Administrative Agent.
Form 10 means the Company's Information Statement on Form 10 filed
with the SEC on July 15, 1999, as amended by Form 10 Amendment No. 1, filed
with the SEC on September 10, 1999.
FRB means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
Funding Date - see Section 4.2.
GAAP means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession, which are applicable to
the circumstances as of the date of determination.
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Governmental Authority means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
Guaranty Obligation has the meaning specified in the definition of
Contingent Obligation.
Indebtedness of any Person means, without duplication, (a all
indebtedness of such Person for borrowed money; (b all obligations of such
Person to pay the deferred purchase price of property or services, except
such obligations arising in the ordinary course of business and maturing
less than one year from the date of creation thereof; (c all
non-contingent reimbursement or payment obligations of such Person with
respect to Surety Instruments; (d all non-contingent obligations of such
Person evidenced by notes, bonds, debentures or similar instruments; (e
all obligations of such Person with respect to Capital Leases; (f all
indebtedness of any other Person of the types referred to in clauses (a
through (e above secured by (or for which the holder of such indebtedness
has an existing right, contingent or otherwise, to be secured by any Lien
upon or in property (including accounts and contracts rights owned by such
Person, even though such Person has not assumed or become liable for the
payment of such indebtedness; provided that the amount of any such
Indebtedness shall be deemed to be the lesser of the face principal amount
thereof and the fair market value of the property subject to such Lien; (g
all indebtedness of the types described in clauses (a through (e above of
any partnership in which such Person is a general partner unless expressly
non-recourse to such Person; and (h all Guaranty Obligations of such
Person in respect of Indebtedness of the types described above; provided
that Indebtedness shall not include (i obligations arising out of the
endorsement of instruments for deposit or collection in the ordinary course
of business or (ii the obligations of such Person under an operating
lease, a synthetic lease or other similar arrangement.
Indemnified Liabilities - see Section 10.5.
Indemnified Person - see Section 10.5.
Independent Auditor - see subsection 6.1(a.
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Insolvency Proceeding means, with respect to any Person, (a any case,
action or proceeding with respect to such Person before any court or
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors or
(b any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in
respect of its creditors generally or any substantial portion of its
creditors; in each case undertaken under any U.S. Federal, state or foreign
law, including the Bankruptcy Code.
Interest Coverage Ratio means, for any Computation Period, the ratio
of (a Consolidated EDITDA for such Computation Period to (b Consolidated
Interest Expense for such Computation Period.
Interest Payment Date means, as to any Loan other than a Base Rate
Committed Loan or Swing Line Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Committed Loan or Swing
Line Loan, the last Business Day of each calendar quarter, provided that if
any Interest Period for an Offshore Rate Committed Loan exceeds three
months, each three-month anniversary of the first day of such Interest
Period also shall be an Interest Payment Date.
Interest Period means, (a as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the date on which such
Loan is converted into or continued as an Offshore Rate Loan, and ending on
the date one, two, three or six months (or seven days in the case of any
LIBOR Bid Loan thereafter as selected by the Company in its Notice of
Committed Borrowing, Notice of Conversion/Continuation or Competitive Bid
Request, as the case may be; and (b as to any Absolute Rate Bid Loan, a
period not less than 7 days and not more than 180 days as selected by the
Company in the applicable Competitive Bid Request; provided that:
(i if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii any Interest Period for an Offshore Rate Loan that begins on
the last Business Day of a calendar
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month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period shall end on
the last Business Day of the calendar month at the end of such
Interest Period; and
(iii no Interest Period for any Loan shall extend beyond the
scheduled Termination Date.
Invitation for Competitive Bids means a solicitation for Competitive
Bids, substantially in the form of Exhibit D.
IRS means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
Knowledge of the Company means the actual knowledge of any Responsible
Officer.
Lender - see the Preamble. References to the "Lenders" shall include
Bank of America in its capacity as Swing Line Lender; for purposes of
clarification only, to the extent that the Swing Line Lender may have any
rights or obligations in addition to those of the other Lenders due to its
status as Swing Line Lender, its status as such will be specifically
referenced.
Lending Office means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.2, or such
other office or offices as such Lender may from time to time notify the
Company and the Administrative Agent.
LIBOR - see the definition of Offshore Rate.
LIBOR Auction means a solicitation of Competitive Bids setting forth a
LIBOR Bid Margin pursuant to Section 2.6.
LIBOR Bid Loan means any Bid Loan that bears interest at a rate based
upon the Offshore Rate.
LIBOR Bid Margin - see subsection 2.6(c(ii(X.
Xxxx means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
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retention agreement, the interest of a lessor under a Capital Lease, or any
financing lease having substantially the same economic effect as any of the
foregoing, but not including the interest of a lessor under an operating
lease.
Loan means an extension of credit by a Lender to the Company under
Article II in the form of a Committed Loan, Bid Loan or Swing Line Loan.
Loan Documents means this Agreement and any Notes.
Majority Lenders means Lenders holding Adjusted Pro Rata Shares
aggregating more than 50%.
Margin Stock means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Material Adverse Effect means (aany event or circumstance that has
resulted in or would reasonably be expected to result in a material adverse
change in, or has had or would be reasonably expected to have a material
adverse effect upon, the operations, business, properties or condition
(financial or otherwise of the Company and its Subsidiaries taken as a
whole or (b any event or circumstance that would prevent the Spin-Off.
Material Financial Obligations means Indebtedness or Contingent
Obligations of the Company or any Subsidiary, or obligations of the Company
or any Subsidiary in respect of any Securitization Transaction, in an
aggregate amount (for all applicable Indebtedness, Contingent Obligations
and obligations in respect of Securitization Transactions, but without
duplication equal to $50,000,000 or more.
Material Subsidiary means, at any time, any Subsidiary having at such
time either (i total (gross revenues for any Computation Period in excess
of 5% of total (gross revenues for the Company and its Subsidiaries or
(ii total assets, as of the last day of the preceding fiscal quarter,
having a net book value in excess of 5% of the consolidated assets of the
Company and its Subsidiaries, in each case, based upon the Company's most
recent annual or quarterly financial statements delivered to the Lenders
and the Administrative Agent under Section 6.1.
Moody's means Xxxxx'x Investors Service, Inc., or any successor
thereto.
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Xxxxx'x Rating means the actual rating level assigned by Moody's to
the Company's senior unsecured long-term public debt.
Multiemployer Plan means a "multiemployer plan", within the meaning of
Section 4001(a(3 of ERISA, with respect to which the Company or any ERISA
Affiliate may have any liability.
Note means a promissory note executed by the Company in favor of a
Lender pursuant to subsection 2.2(b, in substantially the form of Exhibit
I.
Notice of Committed Borrowing means a notice in substantially the form
of Exhibit A.
Notice of Conversion/Continuation means a notice in substantially the
form of Exhibit B.
Notice of Swing Line Loan means a notice substantially in the form of
Exhibit J.
Obligations means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company
to any Lender, the Administrative Agent or any other Indemnified Person,
whether direct or indirect (including those acquired by assignment,
absolute or contingent, due or to become due, or now existing or hereafter
arising.
Offshore Rate means, for any Interest Period, with respect to Offshore
Rate Committed Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1% determined by
the Administrative Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward, if necessary, to an integral multiple of
1/100th of 1% in effect on such day (whether or not applicable to any
Lender under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement with respect to
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Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"; and
"LIBOR" means, for any Interest Period, the rate of interest per
annum determined by the Administrative Agent to be equal to the London
interbank offered rate for deposits in Dollars having a maturity equal
or comparable to such Interest Period as indicated on display
3750 of the Dow Xxxxx Markets Screen as of 11:00 a.m. (London time
two Business Days prior to the commencement of such Interest Period.
If such rate does not appear on 3750 of the Dow Xxxxx Markets
screen (or otherwise on such screen, "LIBOR" shall be determined by
reference to such other comparable publicly available service for
displaying such rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at
which the Administrative Agent is offered deposits in Dollars having a
maturity equal or comparable to such Interest Period by major banks in
the interbank market at or about 11:00 a.m. (New York City time two
Business Days prior to the commencement of such Interest Period in the
approximate amount of the Loan to be made or continued as, or
converted into, an Offshore Rate Committed Loan by Bank of America
(or, in the case of a Borrowing of LIBOR Bid Loans in which Bank of
America is not participating, the largest such LIBOR Bid Loan.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Committed Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
Offshore Rate Committed Loan means a Committed Loan that bears
interest based on the Offshore Rate.
Offshore Rate Loan means any LIBOR Bid Loan or any Offshore Rate
Committed Loan.
Organization Documents means (i for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of determination
or instrument relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof of such
corporation, (ii for any partnership or joint venture, the partnership or
joint venture agreement and any other organizational document of such
entity, (iii for any limited liability company, the certificate or
articles of organization, the operating agreement and any
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other organizational document of such limited liability company, (iv for
any trust, the declaration of trust, the trust agreement and any other
organizational document of such trust and (v for any other entity, the
document or agreement pursuant to which such entity was formed and any
other organizational document of such entity.
Other Credit Agreement means the Short Term Credit Agreement dated as
of September 29, 1999 among the Company, certain financial institutions as
lenders and Bank of America as administrative agent.
Other Taxes means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Document.
Packaging Business - see paragraph 1 of the Introduction to this
Agreement.
Participant - see subsection 10.8(d.
Payment Sharing Notice means a written notice from the Company or any
Lender informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to
allocate payments received from the Company in accordance with subsection
2.15(b.
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
PCA - see paragraph 3 of the Introduction to this Agreement.
PCA IPO - see paragraph 3 of the Introduction to this Agreement.
Pension Plan means a pension plan (as defined in Section 3(2 of
ERISA subject to Title IV of ERISA, other than a Multiemployer Plan, with
respect to which the Company or any ERISA Affiliate may have any liability.
Permitted Liens - see Section 7.2.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock
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company, trust, unincorporated association, joint venture or Governmental
Authority.
Plan means an employee benefit plan (as defined in Section 3(3 of
ERISA, other than a Multiemployer Plan, with respect to which the Company
or any ERISA Affiliate may have any liability, and includes any Pension
Plan.
Pro Rata Share means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place which such
Lender's Commitment constitutes of the Combined Commitments (or, after the
Commitments have terminated, which (i the principal amount of such
Lender's Committed Loans plus (without duplication the participation of
such Lender in (or, in the case of the Swing Line Lender, the
unparticipated portion of the principal amount of all Swing Line Loans
constitutes of (ii the aggregate principal amount of all Committed Loans
and Swing Line Loans.
Reportable Event means, any of the events set forth in Section 4043(c
of ERISA or the regulations thereunder, other than any such event for which
the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
Requirement of Law means, as to any Person, any law (statutory or
common, treaty, rule or regulation or determination of a court, an
arbitrator or of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or
any of its property is subject.
Responsible Officer means the chief executive officer or the president
of the Company, or any other officer having substantially the same
authority and responsibility; or, with respect to financial matters, the
chief financial officer or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility; or,
with respect to litigation and Requirements of Law, the general counsel of
the Company.
S&P means Standard & Poor's Ratings Services, a Division of the
XxXxxx-Xxxx Companies, or any successor thereto.
S&P Rating means the actual rating level assigned by S&P to the
Company's senior unsecured long-term public debt.
SEC means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
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Securitization Transaction means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or any
Subsidiary or any interest in any of the foregoing, together in each case
with any collections and other proceeds thereof, any collection or deposit
accounts related thereto, and any collateral, guaranties or other property
or claims in favor of the Company or such Subsidiary supporting or securing
payment by the obligor thereon of, or otherwise related to, any such
receivables.
Spin-Off - see paragraph 2 of the Introduction to this Agreement.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests is owned or controlled directly or indirectly by
such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Company.
Surety Instruments means all letters of credit (including standby and
commercial, bankers' acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
Swing Line Commitment means the commitment of the Swing Line Lender to
make Swing Line Loans hereunder.
Swing Line Lender means Bank of America in its capacity as swing line
lender hereunder, together with any replacement swing line lender arising
under Section 9.9.
Swing Line Loan - see Section 2.16.
Taxes means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on or measured by its net income,
franchise taxes and similar taxes.
Tenneco - see paragraph 1 of the Introduction to this Agreement.
Tenneco Packaging Group means the Company, its Subsidiaries as of the
Effective Date, and the companies
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which are expected to become its Subsidiaries in connection with the
Spin-Off as of the Funding Date.
Termination Date means the earlier to occur of:
(a September 29, 2004; and
(b the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
Total Debt means, at any time, the sum (determined on a consolidated
basis and without duplication of all Indebtedness of the Company and its
Subsidiaries.
Total Debt to EBITDA Ratio means at any time the ratio of (a Total
Debt at such time to (b Consolidated EBITDA for the Computation Period
ending on the last day of the most recent fiscal quarter for which the
Company has delivered financial statements pursuant to Section 6.1(a or
6.1(b.
Total Outstandings means the sum of (a the Combined Outstandings plus
(b the aggregate principal amount of all outstanding "Loans" (as defined
in the Other Credit Agreement.
Type has the meaning specified in the definition of "Committed Loan."
Unfunded Pension Liability means the excess of a Pension Plan's
benefit liabilities under Section 4001(a(16 of ERISA, over the current
value of such Plan's assets, determined in accordance with the assumptions
used for funding such Pension Plan pursuant to Section 412 of the Code for
the applicable plan year.
United States and U.S. each means the United States of America.
Unmatured Event of Default means any event or circumstance which, with
the giving of notice, the lapse of time or both, will (if not cured or
otherwise remedied during such time constitute an Event of Default.
Utilization Fee Rate - see Schedule 1.1.
Voting Stock means, with respect to any Person, any shares of stock or
other equity interests of any class or classes of such Person whose holders
are entitled under ordinary circumstances (irrespective of whether at the
time
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stock or other equity interests of any other class or classes shall have or
might have voting power by reason of the happening of any contingency to
vote for the election of a majority of the directors, managers, trustees or
other governing body of such Person.
Wholly-Owned Subsidiary means any Subsidiary in which (other than
directors' qualifying shares required by law 100% of the capital stock,
membership interests or other equity interests of each class having
ordinary voting power, and 100% of the capital stock, membership interests
or other equity interests of every other class, in each case, at the time
as of which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
I.2 Other Interpretive Provisions.
(a The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c (i The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii The term "including" is not limiting and means "including
without limitation."
(iii In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means "to
and including."
(d Unless otherwise expressly provided herein, (i references to
agreements (including this Agreement and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
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(e The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
I.3 Accounting Principles.
(a Unless the context otherwise requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied (except for changes agreed to by the Company's independent
public accountants; provided that if the Company notifies the Administrative
Agent that the Company wishes to amend any covenant in Article VII to eliminate
the effect of any change in GAAP that became effective during the preceding
one-year period on the operation of such covenant (or if the Administrative
Agent notifies the Company that the Required Lenders wish to amend Article VII
for such purpose, then the Company's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Company and the Required Lenders.
(b All financial computations required under this Agreement for any
period prior to the Spin-Off shall be made on a pro forma basis and in a manner
consistent with the Form 10.
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(c References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDITS
II.1 Amounts and Terms of Commitments. Each Lender severally agrees, on the
terms and conditions set forth herein, to make Committed Loans to the Company
from time to time on any Business Day during the period from the Effective Date
to the Termination Date, in an aggregate amount at any time outstanding up to
the amount set forth on Schedule 2.1 (such amount, as reduced pursuant to
Section 2.7, or changed by one or more assignments under Section 10.8, such
Lender's "Commitment"; provided that, after giving effect to any Committed
Borrowing, the Combined Outstandings shall not exceed the Combined Commitments;
and provided, further, that the aggregate principal amount of the Committed
Loans of any Lender plus the participation of such Lender in the principal
amount of all outstanding Swing Line Loans shall not at any time exceed such
Lender's Commitment. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions hereof, the Company may borrow under this
Section 2.1, prepay under Section 2.8 and reborrow under this Section 2.1.
II.2 Loan Accounts. (a The Loans made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender in the ordinary course
of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be rebuttable presumptive evidence of the amount of the Loans
made by the Lenders to the Company, and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any greater or
lesser amount owing with respect to the Loans.
(b Upon the request of any Lender made through the Administrative
Agent, the Loans made by such Lender may be evidenced by one or more Notes,
instead of or in addition to loan accounts. Each such Lender shall endorse on
the schedules annexed to its Note(s the date, amount and maturity of each Loan
evidenced thereby and the amount of each payment of principal made by the
Company with respect thereto. Each such Lender is irrevocably authorized by the
Company to endorse its Note(s and each Lender's record shall be rebuttable
presumptive evidence of the amount of the Loans evidenced thereby, and the
interest and payments thereon; provided that the failure of a Lender to make, or
an error in making, a notation thereon with respect to any Loan shall not limit
or otherwise affect the obligations of the
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Company hereunder to pay any greater or lesser amount owing under any such Note
to such Lender.
II.3 Procedure for Committed Borrowing. (a Each Committed Borrowing shall
be made upon the Company's irrevocable written notice delivered to the
Administrative Agent in the form of a Notice of Committed Borrowing, which
notice must be received by the Administrative Agent prior to (i 11:30 a.m. (New
York time three Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Committed Loans, and (ii 11:30 a.m. (New York time on
the requested Borrowing Date, in the case of Base Rate Committed Loans,
specifying:
(A the amount of the Committed Borrowing, which shall be in an
aggregate amount of $5,000,000 or a higher multiple of $1,000,000;
(B the requested Borrowing Date, which shall be a Business Day;
(C the Type of Loans comprising such Committed Borrowing; and
(D in the case of Offshore Rate Committed Loans, the duration of
the initial Interest Period applicable to such Loans.
(b The Administrative Agent will promptly notify each Lender of its
receipt of any Notice of Committed Borrowing and of the amount of such Lender's
Pro Rata Share of such Borrowing.
(c Each Lender will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Administrative Agent for the account of the
Company at the Administrative Agent's Payment Office by 1:00 p.m. (New York
time on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. The proceeds of all such Loans will then
promptly be made available to the Company by the Administrative Agent by wire
transfer in accordance with written instructions provided to the Administrative
Agent by the Company of like funds as received by the Administrative Agent.
(d After giving effect to any Committed Borrowing, unless the
Administrative Agent otherwise consents, the number of Interest Periods in
effect hereunder shall not exceed 15.
II.4 Conversion and Continuation Elections for Committed Borrowings. (a
The Company may, upon irrevocable written notice to the Administrative Agent in
accordance with subsection 2.4(b:
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(i elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest Period,
in the case of Offshore Rate Committed Loans, to convert such Loans (or any
part thereof in an aggregate amount of $5,000,000 or a higher integral
multiple of $1,000,000 into Committed Loans of the other Type; or
(ii elect, as of the last day of the applicable Interest Period,
to continue any Offshore Rate Committed Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
$5,000,000 or a higher integral multiple of $1,000,000 for another
Interest Period;
provided that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of any part thereof, to be less than $1,000,000, such Offshore Rate
Committed Loans shall automatically convert into Base Rate Committed Loans.
(b The Company shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 11:30 a.m. (New York time
(i three Business Days in advance of the Conversion/Continuation Date, if the
Committed Loans are to be converted into or continued as Offshore Rate Committed
Loans; and (ii on the Conversion/Continuation Date, if the Committed Loans are
to be converted into Base Rate Committed Loans, specifying:
(A the proposed Conversion/Continuation Date;
(B the aggregate amount of Committed Loans to be converted or
continued;
(C the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D in the case of conversion into or continuation of Offshore
Rate Committed Loans, the duration of the requested Interest Period.
(c If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Committed Loans (or any
Event of Default or Unmatured Event of Default exists and the Majority Lenders
have not given the consent referred to in subsection (e below, such Offshore
Rate Committed Loans shall automatically convert into
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Base Rate Committed Loans effective as of the expiration date of such Interest
Period.
(d The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Committed Loans with respect to which the notice was
given held by each Lender.
(e Unless the Majority Lenders otherwise consent, the Company may not
elect to have a Loan converted into or continued as an Offshore Rate Committed
Loan during the existence of an Event of Default or Unmatured Event of Default.
(f After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, the number of Interest
Periods in effect hereunder shall not exceed 15.
II.5 Bid Borrowings. In addition to Committed Borrowings pursuant to Section
2.3, each Lender severally agrees that the Company may, as set forth in Section
2.6, from time to time request the Lenders prior to the Termination Date to
submit offers to make Bid Loans to the Company; provided that the Lenders may,
but shall have no obligation to, submit such offers and the Company may, but
shall have no obligation to, accept any such offers; and provided, further, that
after giving effect to any Bid Borrowing, (a the Combined Outstandings shall
not exceed the Combined Commitments and (b the number of Interest Periods in
effect hereunder shall not exceed five.
II.6 Procedure for Bid Borrowings.
(a When the Company wishes to request the Lenders to submit offers to
make Bid Loans hereunder, it shall transmit to the Administrative Agent by
telephone call followed promptly by facsimile transmission a notice in
substantially the form of Exhibit C (a "Competitive Bid Request" so as to be
received no later than 11:30 a.m. New York time (x four Business Days prior to
the date of a proposed Bid Borrowing in the case of a LIBOR Auction or (y one
Business Day prior to the date of a proposed Bid Borrowing in the case of an
Absolute Rate Auction, specifying:
(i the date of such Bid Borrowing, which shall be a Business Day;
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(ii the aggregate amount of such Bid Borrowing, which shall be
$5,000,000 or a higher integral multiple of $1,000,000;
(iii whether the Competitive Bids requested are to be for LIBOR
Bid Loans or Absolute Rate Bid Loans or both; and
(iv the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period" herein.
Subject to subsection 2.6(c, the Company may not request Competitive Bids for
more than three Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of three consecutive
Business Days.
(b Upon receipt of a Competitive Bid Request, the Administrative Agent
will promptly send to the Lenders by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an invitation by the Company to each
Lender to submit Competitive Bids offering to make the Bid Loans to which such
Competitive Bid Request relates in accordance with this Section 2.6.
(c (i Each Lender may at its discretion submit a Competitive Bid
containing an offer or offers to make Bid Loans in response to any Invitation
for Competitive Bids. Each Competitive Bid must comply with the requirements of
this subsection 2.6(c and must be submitted to the Administrative Agent by
facsimile transmission at the Administrative Agent's office for notices not
later than (1 9:30 a.m. (New York time three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction, or (2 9:30 a.m.
(New York time on the proposed date of Borrowing, in the case of an Absolute
Rate Auction; provided that Competitive Bids submitted by the Administrative
Agent (or any Affiliate of the Administrative Agent in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent or such
Affiliate notifies the Company in writing of the terms of the offer or offers
contained therein not later than (A 9:15 a.m. (New York time three Business
Days prior to the proposed date of Borrowing, in the case of a LIBOR Auction, or
(B 9:15 a.m. (New York time on the proposed date of Borrowing, in the case of
an Absolute Rate Auction.
(ii Each Competitive Bid shall be in substantially the form of
Exhibit E, specifying therein:
(A the proposed date of Borrowing;
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(B the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x may be equal
to, greater than or less than the Commitment of the quoting Lender, (y
must be $5,000,000 or a higher integral multiple of $1,000,000 and (z
may not exceed the principal amount of Bid Loans for which Competitive
Bids were requested;
(C if the Company elects a LIBOR Auction, the margin above or
below the Offshore Rate (the "LIBOR Bid Margin" offered for each such
Bid Loan, expressed as a percentage (rounded to the nearest 1/100th of
1% to be added to or subtracted from the applicable Offshore Rate, and
the Interest Period applicable thereto;
(D if the Company elects an Absolute Rate Auction, the rate
of interest per annum (which shall be an integral multiple of
1/10,000th of 1% (the "Absolute Rate" offered for each such Bid Loan;
and
(E the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the quoting
Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bids.
(iii Any Competitive Bid shall be disregarded if it:
(A is not substantially in conformity with Exhibit E or does
not specify all of the information required by subsection (c(ii of
this Section;
(B contains qualifying, conditional or similar language;
(C proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(D arrives after the time set forth in subsection (c(i of
this Section.
(d Promptly on receipt and not later than 10:00 a.m. (New York time
three Business Days prior to the proposed date of Borrowing in the case of a
LIBOR Auction, or 10:00 a.m. (New York time on the proposed date of Borrowing,
in the case of an Absolute Rate Auction, the Administrative Agent will notify
the Company of the terms (i of any Competitive Bid submitted by a
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Lender that is in accordance with subsection 2.6(c and (ii of any Competitive
Bid that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid submitted by such Lender with respect to the same Competitive
Bid Request. Any such subsequent Competitive Bid shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid is submitted solely
to correct a manifest error in such former Competitive Bid and only if received
within the times set forth in subsection 2.6(c. The Administrative Agent's
notice to the Company shall specify (1 the aggregate principal amount of Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid request; and (2 the respective principal amounts
and LIBOR Bid Margins or Absolute Rates, as the case may be, so offered. Subject
only to the provisions of Sections 3.2 and 3.5 and Article IV hereof and the
provisions of this subsection (d, any Competitive Bid shall be irrevocable
except with the written consent of the Administrative Agent given on the written
instructions of the Company.
(e Not later than 10:30 a.m. (New York time three Business Days prior
to the proposed date of Borrowing, in the case of a LIBOR Auction, or 10:30 a.m.
(New York time on the proposed date of Borrowing, in the case of an Absolute
Rate Auction, the Company shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.6(d. The Company shall be under no obligation to accept any offer
and may choose to reject all offers. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers for each Interest Period
that is accepted. The Company may accept any Competitive Bid in whole or in
part; provided that:
(i the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related Competitive
Bid Request;
(ii the principal amount of each Bid Borrowing must be
$5,000,000 or a higher integral multiple of $1,000,000;
(iii acceptance of offers may only be made on the basis of
ascending LIBOR Bid Margins or Absolute Rates, as the case may be,
within each Interest Period; and
(iv the Company may not accept any offer that is described in
subsection 2.6(c(iii or that otherwise fails to comply with the
requirements of this Agreement.
(f If offers are made by two or more Lenders with the same LIBOR Bid
Margins or Absolute Rates, as the case may be, for
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a greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Interest Period, the principal amount of Bid
Loans in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not less than $1,000,000, as the Administrative Agent may deem
appropriate in proportion to the aggregate principal amounts of such offers.
Determination by the Administrative Agent of the amount of Bid Loans shall be
conclusive in the absence of manifest error.
(g (i The Administrative Agent will promptly notify each Lender
having submitted a Competitive Bid if its offer has been accepted and, if its
offer has been accepted, of the amount of the Bid Loan to be made by it on the
date of the applicable Bid Borrowing.
(ii Each Lender which has received notice pursuant to subsection
2.6(g(i that its Competitive Bid has been accepted shall make the
amounts of such Bid Loans available to the Administrative Agent for the
account of the Company at the Administrative Agent's Payment Office by
1:00 p.m. New York time on such date of Bid Borrowing, in immediately
available funds.
(iii Promptly following each Bid Borrowing, the Administrative
Agent shall notify each Lender of the ranges of bids submitted and the
highest and lowest Bids accepted for each Interest Period requested by
the Company and the aggregate amount borrowed pursuant to such Bid
Borrowing.
(iv From time to time, the Company and the Lenders shall furnish
such information to the Administrative Agent as the Administrative
Agent may request relating to the making of Bid Loans, including the
amounts, interest rates, dates of borrowings and maturities thereof,
for purposes of the allocation of amounts received from the Company for
payment of all amounts owing hereunder.
(h If, on the proposed date of Borrowing, the Commitments have not
been terminated and all applicable conditions to funding referenced in Sections
3.2 and 3.5 and Article IV hereof are satisfied, the Lender or Lenders whose
offers the Company has accepted will fund each Bid Loan so accepted.
II.7 Voluntary Termination or Reduction of Commitments. The Company may,
upon not less than three Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Combined Commitments
to an amount not less than the Combined Outstandings. Any such reduction shall
be in a
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minimum amount of $5,000,000 or a higher integral multiple of $1,000,000. Once
reduced in accordance with this Section, the Commitments may not be increased.
Any reduction of the Commitments shall be applied to reduce the Commitment of
each Lender according to its Pro Rata Share. If the Company terminates the
Commitments or reduces the Commitments to zero, the Company shall pay all
accrued and unpaid interest, fees and other amounts payable hereunder on the
date of such termination or reduction.
II.8 Optional Prepayments. (a Subject to the proviso to subsection
2.4(a,the Company may, from time to time, upon irrevocable notice to the
Administrative Agent, which notice must be received by the Administrative Agent
prior to 11:30 a.m. New York time (i three Business Days prior to the date of
prepayment, in the case of Offshore Rate Committed Loans, and (ii on the date
of prepayment, in the case of Base Rate Committed Loans, ratably prepay
Committed Loans in whole or in part, in an aggregate amount of $5,000,000 or a
higher integral multiple of $1,000,000. Such notice of prepayment shall specify
the date and amount of such prepayment and the Committed Loans to be prepaid.
The Administrative Agent will promptly notify each Lender of its receipt of any
such notice and of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with, in the case of Offshore Rate Committed Loans,
accrued interest to such date on the amount prepaid and any amounts required
pursuant to Section 3.4.
(b No Bid Loan may be voluntarily prepaid without the written consent
of the applicable Lender.
(c There shall be no premium or penalty imposed upon or incurred by
the Company in connection with the reduction of a Commitment, voluntary
termination, or prepayment under Section 2.7 or 2.8(a(but any prepayment shall
be subject to Section 3.4.
II.9 Repayment. The Company shall repay each Bid Loan on the last day of
the Interest Period therefor. The Company shall repay all Loans (including any
outstanding Bid Loans and Swing Line Loans on the Termination Date.
II.10 Interest. (a Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to (i the Offshore Rate plus the Applicable Margin or (ii
the Base Rate, as the case may be (and subject to the Company's right to convert
to the other Type of Committed Loan under Section 2.4. Each Swing Line Loan
shall bear interest on the outstanding principal
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amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Base Rate or such other rate as may be agreed to from time to time by the
Company and the Swing Line Lender; provided that after any purchase by the
Lenders of a participation in a Swing Line Loan, the rate of interest on such
Swing Line Loan shall not be less than the Base Rate. Each Bid Loan shall bear
interest on the outstanding principal amount thereof from the relevant Borrowing
Date at the applicable Absolute Rate or at LIBOR for the applicable Interest
Period plus or minus the LIBOR Bid Margin.
(b Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest also shall be paid on the date of any conversion of
Offshore Rate Committed Loans under Section 2.4 and prepayment of Offshore Rate
Committed Loans under Section 2.8, in each case for the portion of the Loans so
converted or prepaid.
(c Notwithstanding the foregoing provisions of this Section, upon
notice to the Company from the Administrative Agent (acting at the request or
with the consent of the Majority Lenders during the existence of any Event of
Default, and for so long as such Event of Default continues, the Company shall
pay interest (after as well as before entry of judgment thereon to the extent
permitted by law on the principal amount of all outstanding Loans and, to the
extent permitted by applicable law, on any other amount payable hereunder or
under any other Loan Document, at a rate per annum which is determined by adding
2% per annum to the rate otherwise applicable thereto pursuant to the terms
hereof or such other Loan Document (or, if no such rate is specified, the Base
Rate. All such interest shall be payable on demand.
(d Anything herein to the contrary notwithstanding, the obligations
of the Company to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Company shall pay such Lender interest at the highest rate permitted
by applicable law.
II.11 Fees. (a Arrangement, Agency Fees. The Company agrees to pay to the
Administrative Agent and BAS such fees at such times and in such amounts as are
mutually agreed to from time to time by the Company, the Administrative Agent
and BAS.
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(b Facility Fees. The Company shall pay to the Administrative Agent
for the account of each Lender a facility fee computed at the Facility Fee Rate
per annum on the amount of such Lender's Commitment as in effect from time to
time (whether used or unused or, if the Commitments have terminated, on the sum
(without duplication of (i the principal amount of such Lender's Committed
Loans plus (ii the participation of such Lender in (or in the case of the Swing
Line Lender, its unparticipated portion of the principal amount of all Swing
Line Loans. Such facility fee shall accrue from the Effective Date to the
Termination Date, and thereafter until all Committed Loans are paid in full, and
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter, with the final payment to be made on the Termination Date (or,
if later, on the date all Committed Loans are paid in full.
(c Utilization Fees. For any day on which the amount of the Total
Outstandings exceeds 33% of the sum of Combined Commitments plus the "Combined
Commitments" under and as defined in the Other Credit Agreement, the Company
shall pay to the Administrative Agent for the account of each Lender a
utilization fee for such day computed at a rate per annum equal to the
Utilization Fee Rate on the sum (without duplication of (i the principal
amount of such Lender's Committed Loans plus (ii the participation of such
Lender in (or in the case of the Swing Line Lender, its unparticipated portion
of the principal amount of all Swing Line Loans. Such utilization fee shall
accrue (for any day on which applicable from the Effective Date to the
Termination Date, and thereafter until all Committed Loans are paid in full, and
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter, with the final payment to be made on the Termination Date (or,
if later, on the date all Committed Loans are paid in full.
II.12 Computation of Fees and Interest. (a All computations of interest
for Base Rate Committed Loans (and Swing Line Loans bearing interest at the Base
Rate when the Base Rate is determined by Bank of America's "reference rate",
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which such interest or such fees are computed
from the first day thereof to the last day thereof.
(b Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Lenders in the
absence of manifest error. The Administrative Agent will, at the request of the
Company or any Lender, deliver to the Company or such Lender, as the case may
be, a statement showing the quotations used by the Administrative
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Agent in determining any interest rate and the resulting interest rate.
II.13 Payments by the Company. (a All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in Dollars and in immediately
available funds, no later than 2:00 p.m. (New York time on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its Pro
Rata Share (or other applicable share as expressly provided herein of such
payment in like funds as received. Any payment received by the Administrative
Agent later than 2:00 p.m. (New York time shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b Whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day (unless, in the case of
a payment with respect to an Offshore Rate Loan, the following Business Day is
in another calendar month, in which case such payment shall be made on the
preceding Business Day, and such extension or reduction of time shall in such
case be included in the computation of interest or fees, as the case may be.
(c Unless the Administrative Agent receives notice from the Company
prior to the date on which any payment is due to the Lenders that the Company
will not make such payment in full as and when required, the Administrative
Agent may assume that the Company has made such payment in full to the
Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required, in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
II.14 Payments by the Lenders to the Administrative Agent. (a Unless the
Administrative Agent receives notice from a Lender at least one Business Day
prior to the date of a Borrowing of Offshore Rate Committed Loans or by 12:30
p.m. (New York time on the day of any Borrowing of Base Rate Committed Loans,
that such Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the Company the amount of such Lender's
Pro Rata Share of such
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Committed Borrowing, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent in immediately available
funds on the Borrowing Date and the Administrative Agent may (but shall not be
so required, in reliance upon such assumption, make available to the Company on
such date a corresponding amount. If and to the extent any Lender shall not have
made its full amount available to the Administrative Agent in immediately
available funds and the Administrative Agent in such circumstances has made
available to the Company such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the Administrative
Agent, together with interest at the Federal Funds Rate. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this subsection (a shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Committed Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the Business Day following the Borrowing Date, the Administrative Agent will
notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Committed Loans comprising such
Committed Borrowing.
(b The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
II.15 Sharing of Payments, Etc. (a Except as otherwise expressly provided
herein, whenever any payment received by the Administrative Agent to be
distributed to the Lenders is insufficient to pay in full the amounts then due
and payable to the Lenders, and the Administrative Agent has not received a
Payment Sharing Notice, such payment shall be distributed to the Lenders (and
for purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a different
application in its books and records in the following order: first, to the
payment of the principal amount of the Loans which is then due and payable,
ratably among the Lenders in accordance with the aggregate principal amount owed
to each Lender; second, to the payment of interest then due and payable on the
Loans, ratably among the Lenders in accordance with the aggregate amount of
interest owed to each Lender; third, to the payment of the facility fees and
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utilization fees payable under subsections 2.11(b and (c, ratably among the
Lenders in accordance with the amount of such fees owed to each Lender; and
fourth, to the payment of any other amount payable under this Agreement, ratably
among the Lenders in accordance with the aggregate amount owed to each Lender.
(b After the Administrative Agent has received a Payment Sharing
Notice, and for so long thereafter as any Event of Default exists, all payments
received by the Administrative Agent to be distributed to the Lenders shall be
distributed to the Lenders (and for purposes of this Agreement shall be deemed
to have been applied by the Lenders, notwithstanding the fact that any Lender
may have made a different application in its books and records in the following
order: first, to the payment of amounts payable under Sections 10.4 and 10.5,
ratably among the Lenders in accordance with the aggregate amount owed to each
Lender; second, to the payment of facility fees and utilization fees payable
under subsections 2.11(b and (c, ratably among the Lenders in accordance with
the amount of such fees owed to each Lender; third, to the payment of the
interest accrued on and the principal amount of all of the Loans regardless of
whether any such amount is then due and payable, ratably among the Lenders in
accordance with the aggregate accrued interest plus the aggregate principal
amount owed to each Lender; and fourth, to the payment of any other amount
payable under this Agreement, ratably among the Lenders in accordance with the
aggregate amount owed to each Lender.
(c If, other than as expressly provided elsewhere herein, any Lender
shall obtain any payment or other recovery (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise on account of
principal of or interest on any Loan, or any other amount payable hereunder, in
excess of the share of payments and other recoveries such Lender would have
received if such payment or other recovery had been distributed pursuant to the
provisions of subsection 2.15(a or (b (whichever is applicable at the time of
such payment or other recovery, such Lender shall immediately (i notify the
Administrative Agent of such fact and (ii purchase from the other Lenders such
participations in the Loans made by (or other Obligations owed to them as shall
be necessary to cause such purchasing Lender to share the excess payment or
other recovery pro rata with each of them in accordance with the order of
payments set forth in subsection 2.15(a or (b, as the case may be; provided
that if all or any portion of such excess payment or other recovery is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i the amount of such
paying Lender's required repayment to (ii the
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total amount so recovered from the purchasing Lender of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Company agrees that any Lender so purchasing a participation
from another Lender may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off, but subject to Section
10.10 with respect to such participation as fully as if such Lender were the
direct creditor of the Company in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding in
the absence of manifest error of participations purchased under this Section
and will in each case notify the Lenders following any such purchases or
repayments.
II.16 Swing Line Commitment. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to the Company on a
revolving basis (each such loan, a "Swing Line Loan" from time to time on any
Business Day during the period from the Effective Date to the Termination Date
in an aggregate principal amount at any one time outstanding not to exceed
$50,000,000; provided that after giving effect to any proposed Swing Line Loan,
the Combined Outstandings shall not exceed the Combined Commitments.
II.17 Borrowing Procedures for Swing Line Loans. The Company shall provide
a Notice of Swing Line Loan or telephonic notice (followed by a confirming
Notice of Swing Line Loan of a proposed Swing Line Loan to the Administrative
Agent and the Swing Line Lender not later than 1:00 p.m.(New York time on the
proposed Borrowing Date. Each such notice shall be effective upon receipt by the
Administrative Agent and the Swing Line Lender and shall specify the date and
the principal amount of such Swing Line Loan. Unless the Swing Line Lender has
received written notice prior to 1:00 p.m. (New York time on the proposed
Borrowing Date from the Administrative Agent or any Lender that one or more of
the conditions precedent set forth in Article IV with respect to such Swing Line
Loan is not then satisfied, the Swing Line Lender shall pay over the requested
principal amount to the Company on the requested Borrowing Date in immediately
available funds. Each Swing Line Loan shall be made on a Business Day and shall
be in the amount of $500,000 or a higher integral multiple of $100,000. The
Swing Line Lender will promptly notify the Administrative Agent of the making
and amount of each Swing Line Loan.
II.18 Prepayment or Refunding of Swing Line Loans. (a The Company may, at
any time and from time to time, prepay any Swing Line Loan in whole or in part,
in an amount equal to $500,000 or a higher integral multiple of $100,000. The
Company shall deliver a notice of prepayment in accordance with Section 10.2 to
be received by the Administrative Agent and the Swing Line Lender
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not later than 12:00 noon (New York time on the Business Day of such
prepayment, specifying the date and amount of such prepayment. If such notice is
given by the Company, the payment amount specified in such notice shall be due
and payable on the date specified therein.
(b The Swing Line Lender may, at any time in its sole and absolute
discretion, on behalf of the Company (which hereby irrevocably directs the Swing
Line Lender to act on its behalf, request each Lender to make a Committed Loan
in an amount equal to such Lender's Pro Rata Share of the principal amount of
the Swing Line Loans outstanding on the date such notice is given. Unless any of
the events described in subsection 8.1(f or (g shall have occurred (in which
event the procedures of Section 2.19 shall apply, and regardless of whether the
conditions precedent set forth in this Agreement to the making of Committed
Loans are then satisfied or the aggregate amount of such Committed Loans is not
in the minimum or integral amount otherwise required hereunder, each Lender
shall make the proceeds of its Committed Loan available to the Administrative
Agent for the account of the Swing Line Lender at the Administrative Agent's
Payment Office prior to 1:00 p.m. (New York time in immediately available funds
on the Business Day next succeeding the date such notice is given. The proceeds
of such Committed Loans shall be immediately applied to repay the outstanding
Swing Line Loans. All Committed Loans made pursuant to this Section 2.18 shall
be Base Rate Committed Loans (but, subject to the other provisions of this
Agreement, may be converted to Offshore Rate Loans.
II.19 Participations in Swing Line Loans. (a If an event described in
subsection 8.1(f or (g exists (or for any reason the Lenders may not make
Committed Loans pursuant to Section 2.18, each Lender will, upon notice from
the Administrative Agent, purchase from the Swing Line Lender (and the Swing
Line Lender will sell to each Lender an undivided participation interest in all
outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the
outstanding principal amount of the Swing Line Loans (and each Lender will
immediately transfer to the Administrative Agent, for the account of the Swing
Line Lender, in immediately available funds, the amount of its participation.
(b Whenever, at any time after the Swing Line Lender has received
payment for any Lender's participation interest in the Swing Line Loans pursuant
to subsection 2.19(a, the Swing Line Lender receives any payment on account
thereof, the Swing Line Lender will distribute to the Administrative Agent for
the account of such Lender its participation interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's
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participation interest was outstanding and funded in like funds as received;
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Lender will return to the
Administrative Agent for the account of the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it in like funds as
such payment is required to be returned by the Swing Line Lender.
II.20 Participation Obligations Unconditional. (a Each Lender's obligation
to make Committed Loans pursuant to Section 2.18 and/or to purchase
participation interests in Swing Line Loans pursuant to Section 2.19 shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including (i any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Company or any other Person for any reason whatsoever; (ii the occurrence or
continuance of an Event of Default or Unmatured Event of Default; (iii any
adverse change in the condition (financial or otherwise of the Company or any
other Person; (iv any breach of this Agreement or any other Loan Document by
the Company or any other Person; (v any inability of the Company to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which any such Loan is to be made or any participation interest therein is to be
purchased; or (vi any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(b Notwithstanding the provisions of subsection 2.20(a, no Lender
shall be required to make any Committed Loan to the Company to refund a Swing
Line Loan pursuant to Section 2.18 or to purchase a participation interest in a
Swing Line Loan pursuant to Section 2.19 if, prior to the making by the Swing
Line Lender of such Swing Line Loan, the Swing Line Lender received written
notice from any Lender specifying that such Lender believed in good faith that
one or more of the conditions precedent to the making of such Swing Line Loan
were not satisfied and, in fact, such conditions precedent were not satisfied at
the time of the making of such Swing Line Loan; provided that the obligation of
such Lender to make such Committed Loans and to purchase such participation
interests shall be reinstated upon the earlier to occur of (i the date on which
such Lender notifies the Swing Line Lender that its prior notice has been
withdrawn and (ii the date on which all conditions precedent to the making of
such Swing Line Loan have been satisfied (or waived by the Majority Lenders or
all Lenders, as applicable.
II.21 Conditions to Swing Line Loans. Notwithstanding any other provision
of this Agreement, the Swing Line Lender shall not be obligated to make any
Swing Line Loan if an Event of
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Default or Unmatured Event of Default exists or would result therefrom.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
III.1 Taxes. (a Any and all payments by the Company to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, the Company shall pay all Other Taxes.
(b If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then:
(i the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section,
such Lender or the Administrative Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and retained had
no such deductions or withholdings been made;
(ii the Company shall make such deductions and withholdings; and
(iii the Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
(c The Company agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of Taxes and Other Taxes in the
amount that such Lender specifies as necessary to preserve the after-tax yield
such Lender would have received if such Taxes or Other Taxes had not been
imposed, and any liability (including penalties, interest, additions to tax and
expenses arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such Lender or the
Administrative Agent makes written demand therefor.
(d Within 30 days after the date of any payment by the Company of
any Taxes or Other Taxes, the Company shall furnish each applicable Lender and
the Administrative Agent the original or a certified copy of a receipt
evidencing payment
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thereof, or other evidence of payment satisfactory to such Lender and the
Administrative Agent.
(e Notwithstanding the foregoing provisions of this Section 3.1, (i
if any Lender fails to notify the Company of any event or circumstance which
will entitle such Lender to compensation pursuant to this Section 3.1 within 90
days after such Lender obtains knowledge of such event or circumstance, then
such Lender shall not be entitled to compensation from the Company for any
amount arising prior to the date which is 90 days before the date on which such
Lender notifies the Company of such event or circumstance; and (ii the Company
shall not be required to pay an additional amount to, or to indemnify, any
Lender pursuant to this Section 3.1 to the extent that (x the obligation to
withhold or pay such amount existed on the Initial Date (as defined below or
(y the obligation to withhold or pay such amount would not have arisen but for
the failure of such Lender to comply with the provisions of Section 9.10 of this
Agreement. For purposes of clause (ii of the foregoing sentence "Initial Date"
means (A in the case of any Lender that is a signatory hereto, the date of this
Agreement, (B in the case of any Person which subsequently becomes a Lender
hereunder, the date of the applicable Assignment and Acceptance, and (C in the
case of any Participant, the date on which it becomes a Participant.
III.2 Illegality. (a If any Lender reasonably determines that the
introduction of any Requirement of Law, or any change in any Requirement of Law,
or in the interpretation by a Governmental Authority or the administration of
any Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Offshore Rate Committed Loans, then, on notice
thereof by such Lender to the Company through the Administrative Agent, any
obligation of such Lender to make Offshore Rate Committed Loans shall be
suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist.
(b If a Lender reasonably determines that it is unlawful to maintain
any Offshore Rate Committed Loan, the Company shall, upon its receipt of notice
of such fact and demand from such Lender (with a copy to the Administrative
Agent, prepay in full such Offshore Rate Committed Loan of such Lender together
with interest accrued thereon and amounts required under Section 3.4, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Offshore Rate Committed Loan to such day, or
immediately, if such Lender may not lawfully continue to maintain such Offshore
Rate Committed Loan. If the Company is required to so prepay any
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Offshore Rate Committed Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Lender, in the amount of such repayment,
a Base Rate Committed Loan.
(c If the obligation of any Lender to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, all Loans which would
otherwise be made by such Lender as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
III.3 Increased Costs and Reduction of Return. (a If any Lender reasonably
determines that, due to either (i the introduction of or any change (other than
any change by way of imposition of or increase in reserve requirements included
in the calculation of the Offshore Rate after the date hereof in or in the
interpretation of any law or regulation by a Governmental Authority or (ii
compliance by such Lender with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law adopted,
issued or delivered after the date hereof, there shall be any increase in the
cost to such Lender (excluding any Taxes, Other Taxes or taxes imposed on or
measured by the net income of such Lender, and franchise taxes and similar
taxes of agreeing to make or making, funding or maintaining any Offshore Rate
Committed Loan, then the Company shall be liable for, and shall from time to
time, within 15 days after demand (with a copy of such demand to be sent to the
Administrative Agent, pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased cost.
(b If any Lender shall have reasonably determined that (i the
introduction after the date hereof of any Capital Adequacy Regulation, (ii any
change after the date hereof in any Capital Adequacy Regulation, (iii any
change after the date hereof in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv compliance by
such Lender (or its Lending Office or any corporation controlling such Lender
with any Capital Adequacy Regulation (excluding any Capital Adequacy Regulation
as in effect on the date hereof affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital reasonably determines that the amount of such capital
is increased as a consequence of its Commitment, Loans or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Administrative Agent, the Company shall pay to such Lender, from time to time as
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specified by such Lender, additional amounts sufficient to compensate such
Lender for such increase.
(c Notwithstanding the foregoing provisions of this Section 3.3, if
any Lender fails to notify the Company in writing of any event or circumstance
which will entitle such Lender to compensation pursuant to this Section 3.3
within 90 days after such Lender obtains knowledge of such event or
circumstance, then such Lender shall not be entitled to compensation from the
Company for any amount arising prior to the date which is 90 days before the
date on which such Lender notifies the Company of such event or circumstance.
III.4 Funding Losses. The Company shall reimburse each Lender and hold each
Lender harmless from any loss or expense which the Lender may sustain or incur
as a consequence of:
(a the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given a Notice of Committed
Borrowing or a Notice of Conversion/Continuation or has accepted a Competitive
Bid for such Loan;
(b the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.8;
(c the prepayment (including after acceleration thereof of an
Offshore Rate Committed Loan or a Bid Loan on a day that is not the last day of
the relevant Interest Period; or
(d the automatic conversion under subsection 2.4(a of any Offshore
Rate Committed Loan to a Base Rate Committed Loan on a day that is not the last
day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or Bid Loans or from
fees payable to terminate the deposits from which such funds were obtained (but
excluding any loss of margin or profit arising from any action or inaction of
the nature described in paragraphs (a through (d of this Section 3.4. For
purposes of calculating amounts payable by the Company to the Lenders under this
Section and under subsection 3.3(a, each Offshore Rate Committed Loan made by a
Lender (and each related reserve, special deposit or similar requirement shall
be conclusively deemed to have been funded at the LIBOR used in determining the
Offshore Rate for such Offshore Rate Committed Loan by a matching deposit or
other borrowing in the interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Offshore Rate Committed Loan is in
fact so funded.
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III.5 Inability to Determine Rates. If (a the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Committed Loan, or (b the Majority Lenders determine
that the Offshore Rate applicable pursuant to subsection 2.10(a for any
requested Interest Period with respect to a proposed Offshore Rate Committed
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Company and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Offshore
Rate Committed Loans hereunder shall be suspended until the Administrative Agent
(upon the instruction of the Majority Lenders in the case of clause (b revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Committed Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Committed Loans instead of
Offshore Rate Committed Loans.
III.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a copy to
the Administrative Agent a certificate setting forth in reasonable detail the
amount payable to such Lender hereunder and the manner in which such amount has
been calculated, and such certificate shall be conclusive and binding on the
Company in the absence of manifest error.
III.7 Mitigation. Each Lender shall promptly notify the Company and the
Administrative Agent of any event of which it has knowledge which will result
in, and will use reasonable commercial efforts available to it (and not, in such
Lender's good faith judgment, otherwise disadvantageous to such Lender to
mitigate or avoid, (i any obligation of the Company to pay any amount pursuant
to Section 3.1 or 3.3 or (ii the occurrence of any circumstance of the nature
described in Section 3.2 or 3.5. Without limiting the foregoing, each Lender
will designate a different Lending Office if such designation will avoid (or
reduce the cost to the Company of any event described in clause (i or (ii of
the preceding sentence and such designation will not, in such Lender's good
faith judgment, be otherwise disadvantageous to such Lender.
III.8 Substitution of Lenders. Upon the receipt by the Company from any
Lender of a claim for compensation under Section 3.1 or 3.3 or a notice of the
type described in Section 3.2, the Company may: (i designate a replacement bank
or financial
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institution satisfactory to the Company (a "Replacement Lender" to acquire and
assume all or a ratable part of all of such affected Lender's Loans and
Commitment; and/or (ii request one or more of the other Lenders to acquire and
assume all or a ratable part of all of such affected Lender's Loans and
Commitment (it being understood that no Lender shall be obligated to comply with
any such request. Any designation of a Replacement Lender under clause (i
shall be subject to the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld.
III.9 Survival. The agreements and obligations of the Company in this
Article III shall survive the termination of this Agreement and the payment of
all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
IV.1 Conditions to Effectiveness. This Agreement shall become effective on
the date (the "Effective Date" on which the Administrative Agent shall have
received (i evidence satisfactory to the Administrative Agent that the Company
has paid all fees and other amounts then payable under subsection 2.11(a and
(ii all of the following, in form and substance satisfactory to the
Administrative Agent and each Lender, and (except for the Notes in sufficient
copies for each Lender:
(a Agreement and Notes. This Agreement and the Notes executed by
each party hereto and thereto.
(b Resolutions; Incumbency.
(i Copies of the resolutions of the board of directors of the
Company authorizing the execution and delivery of the Loan Documents
and the consummation of the transactions contemplated hereby,
certified as of the Effective Date by the Secretary or an Assistant
Secretary of such Person; and
(ii a certificate of the Secretary or Assistant Secretary of the
Company certifying the names and true signatures of the officers,
employees or authorized agents of the Company authorized to execute
and deliver the Loan Documents and to deliver Notices of Borrowing,
Notices of Conversion/Continuation, Competitive Bid Requests, Notices
of Swing Line Loans, Compliance Certificates and similar documents.
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(c Organization Documents. The articles or certificate of
incorporation and the bylaws of the Company as in effect on the Effective Date,
certified by the Secretary or Assistant Secretary of the Company as of the
Effective Date.
(d Payment of Fees and Expenses. Evidence of payment by the Company
of all accrued and unpaid fees, costs and expenses to the extent then due and
payable hereunder on the Effective Date, together with Attorney Costs of Bank of
America to the extent invoiced prior to the Effective Date, plus such additional
amounts of Attorney Costs as shall constitute Bank of America's reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude final
settling of accounts between the Company and Bank of America, which shall be
made based upon actual Attorney Costs, including any such costs, fees, costs
and expenses arising under or referenced in Sections 2.11 and 10.4.
(e Tax Ruling or Opinion. A tax ruling from the IRS or an opinion of
counsel to the effect that the Spin-Off will be free of federal income taxes
payable by the Company.
(f Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.
The Administrative Agent shall determine when the Effective Date has
occurred and will so promptly notify the Company and the Lenders thereof in
writing.
IV.2 Conditions to Initial Borrowing. The obligation of each Lender to make
the Loan to be made by it (including the obligation of the Swing Line Lender to
make any Swing Line Loan on the initial Borrowing Date (the "Funding Date" is
subject to the satisfaction of the following conditions precedent on the Funding
Date, which shall not be later than November 30, 1999:
(a Effective Date. The Effective Date shall have occurred.
(b Consummation of Spin-Off. The Administrative Agent shall have
received a certificate signed by a Responsible Officer of the Company, dated as
of the Funding Date, stating that, to the best of such officer's knowledge after
due inquiry, the Spin-Off has been consummated (or shall be consummated
substantially concurrently with the initial Borrowing on substantially the
terms set forth in the Form 10 and the Company's filing on Form S-4, without
giving effect to any material amendment thereto (other than any amendment prior
to the Effective Date or any amendment which does not affect any member
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of the Tenneco Packaging Group, unless approved in writing by the Required
Lenders, which approval shall not be unreasonably withheld or delayed.
(c Consents and Approvals. All approvals, consents, exemptions,
authorizations and actions by, or notices to, or filings with, any Governmental
Authority or other third party that are necessary or required prior to and in
connection with the Spin-Off or the execution, delivery and performance by, or
enforcement against, the Company of the Agreement or any other Loan Document,
shall have been obtained or made, as the case may be, and are in full force and
effect, and all applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the Spin-Off or the financing
thereof or the other transactions contemplated by the Agreement and the Loan
Documents.
(d Payments of Fees and Expenses. The Administrative Agent shall have
received evidence of payment by the Company of all accrued and unpaid fees,
costs and expenses to the extent then due and payable hereunder on the Funding
Date, together with Attorney Costs of Bank of America to the extent invoiced
prior to the Funding Date, plus such additional amounts of Attorney Costs as
shall constitute Bank of America's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the Funding Date proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Company and Bank of America, which shall be made based upon actual
Attorney Costs, including any such, fees, costs and expenses arising under or
referenced in Sections 2.11 and 10.4.
(e Legal Opinions. An opinion of Jenner & Block, counsel to the
Company, substantially in the form of Exhibit G.
(f Certificate. A certificate signed by a Responsible Officer, dated
as of the Funding Date, stating that to the best of his knowledge after due
inquiry:
(i the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of
such date;
(ii no Event of Default or Unmatured Event of Default exists or
would result from the initial borrowing on the Funding Date; and
(iii since June 30, 1999, no event or circumstance has occurred
that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
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(g Other Documents. Such other approvals, documents or materials as
the Administrative Agent or any Lender may reasonably request.
IV.3 Conditions to All Borrowings. The obligation of each Lender to make
any Loan to be made by it (including the obligation of the Swing Line Lender to
make any Swing Line Loan is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date:
(a Notice. The Administrative Agent shall have received a Notice of
Committed Borrowing or notice of the acceptance by the Company of one or more
Competitive Bids or the Swing Line Lender and the Administrative Agent shall
have received a Notice of Swing Line Loan.
(b Continuation of Representations and Warranties. The
representations and warranties in Article V (excluding subsection 5.11(b shall
be true and correct in all material respects on and as of such Borrowing Date
with the same effect as if made on and as of such Borrowing Date (except to the
extent such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct in all material respects as of such
earlier date.
(c No Default. No Event of Default or Unmatured Event of Default
shall exist or shall result from such Borrowing or Swing Line Loan.
Each Notice of Committed Borrowing, notice of acceptance of a Competitive Bid
and Notice of Swing Line Loan, submitted by the Company hereunder shall
constitute a representation and warranty by the Company that, as of the date of
each such notice and as of the relevant Borrowing Date, the conditions in this
Section 4.3 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants (it being understood that
representations and warranties made with respect to the Company and its
Subsidiaries shall apply to the Tenneco Packaging Group prior to the Funding
Date to the Administrative Agent and each Lender that:
V.1 Corporate Existence and Power. The Company and each of its
Subsidiaries:
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(a is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization;
(b has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, to carry on its
business and to execute, deliver and perform its obligations under the Loan
Documents to which it is a party;
(c is duly qualified to do business in each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification; and
(d is in compliance with all Requirements of Law;
except, in each case referred to in clause (c or clause (d, to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
V.2 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company of each Loan Document to which the Company is party
have been duly authorized by all necessary corporate action, and do not and will
not:
(a contravene the terms of any of the Company's Organization
Documents;
(b conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any material Contractual
Obligation to which the Company or any of its Subsidiaries is a party or any
order, injunction, writ or decree of any Governmental Authority to which the
Company or any of its Subsidiaries or any of its property is subject; or
(c violate any Requirement of Law applicable to the Company or any
Subsidiary.
V.3 Governmental Authorization. Except those required in connection with
the Spin-Off, no approval, consent, exemption, authorization or other action by,
or notice to, or filing with, any Governmental Authority (other than any of the
foregoing which has been obtained or made and is in full force and effect is
necessary or required in connection with the execution, delivery or performance
by the Company of the Agreement or any other Loan Document.
V.4 Binding Effect. This Agreement and each other Loan Document constitute
the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as enforceability may
be limited
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by applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
V.5 Litigation. Except as disclosed in a memorandum delivered to the
Lenders prior to the Effective Date, there are no actions, suits, proceedings,
claims, disputes pending or, to the Knowledge of the Company, threatened, at
law, in equity, in arbitration or before any Governmental Authority, against the
Company or any Subsidiary or any of their respective properties which: (a
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or (b if determined
adversely to the Company or its Subsidiaries, could in the reasonable judgment
of the Company be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or other order of any nature has been issued
by any court or other Governmental Authority purporting to enjoin or restrain
the execution, delivery or performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
V.6 No Default. No Event of Default or Unmatured Event of Default exists or
would result from the incurring of any Obligations by the Company. As of the
Effective Date, neither the Company nor any Subsidiary is in default under or
with respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have a Material
Adverse Effect.
V.7 ERISA Compliance. (a Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan which is intended to qualify under Section 401(a of the
Code has received a favorable determination letter from the IRS, and to the best
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
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(c (i No ERISA Event has occurred or is reasonably expected to occur;
(ii no contribution failure has occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f of ERISA; (iii no
Pension Plan has any material Unfunded Pension Liability; (iv neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any material liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA; (v
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any material liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability
under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(vi neither the Company nor any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or 4212(c of ERISA.
V.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans will be
used solely for the purposes set forth in and permitted by Section 6.12 and
Section 7.7. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
V.9 Title to Properties. The Company and each Subsidiary (other than
foreign Subsidiaries have (or, in the case of property that will be transferred
to the Tenneco Packaging Group in connection with the Spin-Off, after such
transfer will have good record title in fee simple to all real property (other
than leasehold property necessary to conduct their respective businesses in the
ordinary course, except for (i Permitted Liens, and (ii such defects in title
as could not, individually or in the aggregate, have a Material Adverse Effect.
As of the Effective Date, the property of the Company and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
V.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports which are required to be filed, and have
paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Company or any Subsidiary that would, if made, have a Material Adverse
Effect.
V.11 Financial Condition. (a(1 The combined financial statements of the
Company and its Subsidiaries dated as of December 31, 1998, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the
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fiscal year ended on that date reported on by Xxxxxx Xxxxxxxx LLP and set forth
in the Form 10 and the Company's filings on Form S- 4 (as referenced in the
definition of Spin-Off, and (2 the interim combined financial statements of
the Company and its Subsidiaries dated June 30, 1999, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal quarter ended on that date reported on by Xxxxxx Xxxxxxxx
LLP and set forth in the Form 10 and the Company's filings on Form S-4 (as
referenced in the definition of Spin-Off:
(i were prepared in accordance with GAAP consistently applied for
the periods covered thereby, except as otherwise expressly noted
therein (subject, in the case of the unaudited interim statements, to
ordinary, good faith year-end audit adjustments; and
(ii fairly present (subject, in the case of the unaudited interim
statements, to ordinary, good faith year-end audit adjustments the
financial condition of the Company and its Subsidiaries as of the
dates thereof and the results of operations for the periods covered
thereby.
(b Since June 30, 1999, there has been no Material Adverse Effect.
V.12 Environmental Matters. The Company conducts in the ordinary course of
business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in Schedule 5.12, such Environmental Laws and Environmental Claims are
unlikely to have, individually or in the aggregate, a Material Adverse Effect.
V.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, any state
public utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
V.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary is
bound by, or subject to any restriction in, any Organization Document or
Requirement of Law, which could reasonably be expected to have a Material
Adverse Effect.
V.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company or its
Subsidiaries own or are licensed or otherwise have the right to use all of the
material patents, trademarks,
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service marks, trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person,
except to the extent failure to own, license or otherwise have the right to use
any such item, or any such conflict, could not reasonably be expected to have a
Material Adverse Effect. The Company has not received any written notice that
any slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by the
Company or any Subsidiary, and which is material to the business or operations
of the Company and its Subsidiaries, infringes upon any rights held by any other
Person (excluding infringements which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
V.16 Subsidiaries. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a of Schedule
5.16 and has no equity investments in any other corporation or entity other than
those specifically disclosed in part (b of Schedule 5.16. As of the Funding
Date, the additional Subsidiaries disclosed on part (c of Schedule 5.16 also
will become Subsidiaries of the Company in connection with the Spin-Off, and
therefore are part of the Tenneco Packaging Group.
V.17 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies (or pursuant to
a self-insurance program in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or such Subsidiary
operates.
V.18 Year 2000 Problem. The Company and its Subsidiaries have reviewed the
areas within their business and operations which could be adversely affected by,
and have developed programs to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by the Company may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999. Based on such
review and programs, the Company reasonably believes that the "Year 2000
Problem" will not result in a Material Adverse Effect.
V.19 Full Disclosure. The representations and warranties made by the
Company and its Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and the statements
contained in any exhibit, report, statement or certificate furnished in writing
by or on behalf of the Company or any Subsidiary in connection with the Loan
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Documents, taken as a whole, do not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary to
make the statements made therein, taken as a whole and in light of the
circumstances under which they are made, not misleading in any material respect
as of the time when made or delivered.
V.20 Solvency, etc. On the Funding Date, and immediately prior to and after
giving effect to each Borrowing hereunder and the use of the proceeds thereof,
(a the Company's assets will exceed its liabilities and (b the Company will be
solvent, will be able to pay its debts as they mature, will own property with
fair saleable value greater than the amount required to pay its debts and will
have capital sufficient to carry on its business as then constituted.
V.21 Labor Relations. Except as disclosed in Schedule 5.21, there are no
strikes, lockouts or other work stops against the Company or any of its
Subsidiaries, or, to the Knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries, and no significant unfair
labor practice complaint is pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company, threatened against any of
them before any Governmental Authority that, in each case, is likely to have a
Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
Beginning on the Funding Date and continuing so long as any Lender shall
have any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Lenders waive compliance in writing:
VI.1 Financial Statements. The Company shall deliver to each Lender and the
Administrative Agent, in form and detail satisfactory to the Lenders and the
Administrative Agent (it being understood that for purposes hereof, the form and
detail required by the SEC for annual and quarterly reports filed pursuant to
the Exchange Act shall be deemed satisfactory:
(a as soon as available, but not later than 90 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of Xxxxxx Xxxxxxxx
LLC or another nationally-recognized
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independent public accounting firm ("Independent Auditor", which opinion (i
shall state that such consolidated financial statements present fairly the
Company's consolidated financial position for the periods indicated in
conformity with GAAP and (ii shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of the Company's or any Subsidiary's records; and
(b as soon as available, but not later than 50 days after the end of
each of the first three fiscal quarters of each fiscal year (commencing with the
fiscal quarter ending September 30, 1999, a copy of the unaudited consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter
and the related consolidated statements of income, shareholders' equity and cash
flows for the period commencing on the first day and ending on the last day of
such quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments, the financial position and the results of operations of the
Company and its Subsidiaries as of such date and for such period.
VI.2 Certificates; Other Information. The Company shall furnish to each
Lender and the Administrative Agent:
(a concurrently with the delivery of the financial statements
referred to in subsections 6.1(a and (b, a Compliance Certificate executed by
a Responsible Officer;
(b promptly after their becoming available, copies of all financial
statements and reports that the Company sends to its shareholders, and copies of
all financial statements and regular, periodic or special reports (including
Forms 10K, 10Q and 8K that the Company or any Subsidiary may make to, or file
with, the SEC;
(c promptly after their becoming available, any management letter
issued by the Company's Independent Auditor regarding the "Year 2000" exposure
or programs of the Company and its Subsidiaries; and
(d promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
VI.3 Notices. The Company shall promptly (or, in the case of any event
described in clause (c(ii below, not less than 10 days prior to the occurrence
of such event notify the Administrative Agent and each Lender:
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(a of the occurrence of any Event of Default or Unmatured Event of
Default known to the Company;
(b of any of the following matters that has resulted or is reasonably
expected to result in a Material Adverse Effect: (i breach or non-performance
of, or any default under, a Contractual Obligation of the Company or any
Subsidiary; (ii any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental Authority;
or (iii the commencement of, or any material ruling, order or judgment in, any
litigation or proceeding affecting the Company or any Subsidiary is a party,
including pursuant to any applicable Environmental Laws;
(c of the occurrence of any of the following events known to the
Company which affect the Company or any ERISA Affiliate, and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such event:
(i an ERISA Event;
(ii a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f of ERISA;
(iii the adoption of, or the commencement of contributions to,
any Pension Plan by the Company or any ERISA Affiliate that, in either
case, requires material contributions; or
(iv the adoption of any amendment to a Pension Plan if such
amendment results in a material increase in contributions or Unfunded
Pension Liability;
(d of any material change in accounting policies or financial
reporting practices by the Company and its consolidated Subsidiaries; and
(e of any change in the Xxxxx'x Rating or the S&P Rating.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto.
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VI.4 Preservation of Corporate Existence, Etc. The Company shall, and shall
cause each Subsidiary to (provided that nothing in this Section 6.4 shall
prevent the voluntary liquidation, dissolution or winding up, not under any
bankruptcy or insolvency law, of any Subsidiary so long as no Event of Default
exists and no Event of Default or Unmatured Event of Default will result
therefrom:
(a preserve and maintain in full force and effect its existence and
good standing under the laws of its jurisdiction of organization;
(b preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
in the normal conduct of its business (except in connection with transactions
and sales of assets permitted by Section 7.4; and
(c preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect; provided, however, that the Company
shall have the right to assign to an Affiliate of Tenneco, or not preserve or
renew, certain trademarks of Tenneco that are currently owned by the Company or
any Subsidiary, but which are not used by the Company or such Subsidiary.
VI.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
VI.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers (or pursuant
to a self-insurance program, insurance with respect to its properties and
business in such amounts, with such deductibles, and covering such risks as are
customarily carried under similar circumstances by such other Persons.
VI.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge, as the same become due and payable: (a all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets and (b all material claims which, if unpaid, would
by law become a Lien upon its property, unless, in each case, the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary.
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VI.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act the non-compliance with which might have a Material Adverse
Effect.
VI.9 Compliance with ERISA. The Company shall, and shall cause each of its
ERISA Affiliates to: (a maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b cause each Plan which is qualified under Section 401(a of the
Code to maintain such qualification; and (c make all required contributions to
any Plan subject to Section 412 of the Code.
VI.10 Inspection of Property and Books and Records. The Company shall, and
shall cause each Subsidiary to, maintain proper books of record and account, in
which full, true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent, any Lender or their respective
representatives, subject to such limitations as the Company may reasonably
impose to ensure compliance with any applicable legal or contractual
restrictions, to visit and inspect the properties of the Company or any
Subsidiary, to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss the
affairs, finances and accounts of the Company or any Subsidiary with their
respective officers at such reasonable times during normal business hours as may
be reasonably desired, upon reasonable advance notice to the Company; provided
that when an Event of Default exists the Administrative Agent or any Lender may
do any of the foregoing at any time during normal business hours and without
advance notice.
VI.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except to the extent any failure to be
compliance would not, individually or in the aggregate with all other such
failures, reasonably be expected to result in a Material Adverse Effect.
VI.12 Use of Proceeds. The Company shall use the proceeds of the Loans for
refinancing existing indebtedness of Tenneco or its Subsidiaries (including the
Company and for working capital and other general corporate purposes (including
the payment of dividends concurrently with the Spin-Off as set forth in the Form
10 not in contravention of any Requirement of Law or of any Loan Document;
provided that the Company shall not use the proceeds of
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any Loan to make any Acquisition if the Board of Directors of the Person to be
acquired has not approved such Acquisition.
VI.13 Change in Business. The Company and its Subsidiaries taken as a whole
shall continue the primary businesses in which they are engaged on the Funding
Date and lines of business reasonably related thereto.
ARTICLE VII
NEGATIVE COVENANTS
Beginning on the Funding Date and continuing so long as any Lender shall
have any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Lenders waive compliance in writing:
VII.1 Financial Condition Covenants.
(a Minimum Interest Coverage Ratio. The Company shall not permit, as
of the last day of any fiscal quarter (beginning with the first fiscal quarter
ending after the Funding Date, its Interest Coverage Ratio to be less than (i
for each Computation Period ending prior to October 1, 2000, 3.0 to 1 and (ii
for each Computation Period ending thereafter, 3.5 to 1.
(b Maximum Total Debt to EBITDA Ratio. The Company shall not permit
the Total Debt to EBITDA Ratio to be greater than (i 3.85 at any time prior to
the earlier of (A April 1, 2000 and (B the consummation of the PCA IPO, and
(ii 3.5 to 1 at any time thereafter.
VII.2 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens":
(a any Lien existing on the Effective Date and set forth in Schedule
7.2, and any extension, renewal or replacement of any such Lien so long as the
principal amount secured thereby is not increased (other than an increase
resulting solely from a change in applicable rates of exchange between U.S.
Dollars, on the one hand, and any other currency in which such principal amount
is denominated, on the other hand and the scope of the property subject to such
Lien is not extended;
(b Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due, or
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to the extent that non-payment thereof is permitted by Section 6.7, provided
that no notice of Lien has been filed or recorded under the Code;
(c statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law or created in the ordinary
course of business which are not delinquent or remain payable without penalty or
which are being contested in good faith by appropriate proceedings;
(d Liens (other than any Lien imposed by ERISA consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(e Liens on the property of the Company or any Subsidiary securing
(i the non-delinquent performance of bids, trade contracts (other than for
borrowed money, leases, statutory obligations, (ii surety bonds (excluding
appeal bonds and other bonds posted in connection with court proceedings or
judgments and (iii other non-delinquent obligations of a like nature in each
case incurred in the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced cause a Material Adverse Effect;
(f Liens consisting of judgment or judicial attachment liens and
liens securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that (i in the case of
judgment and judicial attachment liens, the enforcement of such Liens is
effectively stayed and (ii all such liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $20,000,000;
(g easements, rights-of-way, covenants, conditions, restrictions and
other similar encumbrances incurred in the ordinary course of business which,
individually or in the aggregate, do not materially interfere with the ordinary
conduct of the respective businesses of the Company and its Subsidiaries;
(h Liens securing obligations in respect of Capital Leases or
operating leases on assets subject to such leases, provided that, in the case of
Capital Leases, such Capital Leases are otherwise permitted hereunder;
(i Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i such deposit account is not a
dedicated cash
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collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the FRB, and
(ii such deposit account is not intended by the Company or any Subsidiary to
provide collateral to the depository institution;
(j any Lien on property existing at the time of acquisition of such
property by the Company or a Subsidiary, or Liens to secure the payment of all
or part of the purchase price of property upon the acquisition of property by
the Company or a Subsidiary or to secure any Indebtedness incurred or guaranteed
prior to, at the time of, or within one hundred eighty (180 days after, the
later of the date of acquisition of such property and the date such property is
placed in service, for the purpose of financing all or any part of the purchase
price thereof, or Liens to secure any Indebtedness incurred or guaranteed for
the purpose of financing the cost to the Company or a Subsidiary or improvements
to such acquired property;
(k other Liens, in addition to those permitted by clauses (a
through (j, securing Indebtedness or arising in connection with Securitization
Transactions; provided that(i the sum (without duplication of all such
Indebtedness (excluding Indebtedness arising in connection with Securitization
Transactions shall not at any time exceed in the aggregate $100,000,000; and
(ii the aggregate investment or claim held at any time by all purchasers,
assignees or other transferees of (or of interests in receivables and other
rights to payment in all such Securitization Transactions, shall not at any time
exceed in the aggregate $200,000,000; and
(l rights of first refusal, rights of Governmental Authorities to
approve transfers and other similar restrictions on transfer of any ownership
interest of the Company or any of its Subsidiaries in any joint venture or
similar investment in an entity (other than a Subsidiary operating primarily
outside of the United States.
VII.3 Restrictions on Subsidiaries. The Company (a will not enter into any
agreement or understanding pursuant to which any claim it may have against any
Subsidiary would be subordinate in any manner to the payment of any other
obligation of such Subsidiary and (b will not, and will not permit any
Subsidiary to, enter into any agreement or understanding which by its terms
limits or restricts the ability of such Subsidiary to make funds available to
the Company (whether by way of a dividend or other distribution, by repayment of
any inter-company advance or otherwise if, in any such case referred to in (a
or (b above, there is, at the time any such agreement is entered into, a
reasonable likelihood that all such agreements and understandings referred to in
(a or (b above, considered together, would
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materially and adversely affect the ability of the Company to meet its
obligations as they become due.
VII.4 Consolidation, Mergers and Sales of Assets. The Company will not
merge or consolidate with any other Person or sell, lease, transfer or otherwise
dispose of its property and assets as, or substantially as, an entirety to any
Person, unless (a either the Company shall be the continuing or surviving
corporation, or the successor or acquiring corporation shall be a solvent
corporation organized under the laws of any State of the United States of
America and shall expressly assume in writing all of the obligations of the
Company under this Agreement and the Notes, including all covenants herein and
therein contained, and such successor or acquiring corporation shall succeed to
and be substituted for the Company with the same effect as if it had been named
herein as a party hereto, provided that no such sale shall release the Company
from any of its obligations and liabilities under this Agreement or the Notes
unless such sale is followed by the complete liquidation of the Company and
substantially all the assets of the Company immediately following such sale are
distributed in such liquidation, and (b the Company as the continuing or
surviving corporation or the successor or acquiring corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
other disposition, be in default under any such obligations.
VII.5 Limitation on Subsidiary Indebtedness. The Company shall not permit
its Subsidiaries to create, incur, assume or suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any Indebtedness
(excluding obligations in respect of Securitization Transactions at any time
outstanding in an aggregate amount in excess of the greater of (a $100,000,000
and (b 12.5% of Total Debt.
VII.6 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than the Company or a Subsidiary, except upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate
of the Company or such Subsidiary.
VII.7 Use of Proceeds. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the Loan proceeds, directly or indirectly, to
(i engage principally, or as one of its important activities, in the business
of extending credit for the purposes of purchasing or carrying any Margin Stock
or (ii use the proceeds of any Loan, directly or indirectly, whether immediate,
incidental or ultimate, (a to purchase or carry, within the meaning of
Regulation U, any Margin Stock or to extend credit to others for the purpose of
purchasing
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or carrying any Margin Stock, unless done in strict compliance with Regulation U
and other applicable law and the Company shall have executed and delivered to
each Lender prior to such use a Form U-1 statement evidencing compliance with
Regulation U and such other documents relating thereto as any Lender shall
reasonably request, or (b in a manner which would violate, or result in a
violation of, Regulation U.
VII.8 ERISA. The Company shall not, and shall not permit any of its ERISA
Affiliates to: (a engage in a prohibited transaction or material violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $5,000,000; or (b engage in a transaction that
could be subject to Section 4069 or 4212(c of ERISA.
VII.9 Securitization Transactions. The Company shall not, and shall not
permit its Subsidiaries to enter into any Securitization Transaction to the
extent that the aggregate investment or claims held at any time by all
purchasers, assignees, transferees of (or of interests in receivables and other
rights to payment in all Securitization Transactions would at any time exceed
$200,000,000.
ARTICLE VIII
EVENTS OF DEFAULT
VIII.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a Non-Payment. The Company fails to pay, (i when and as required
to be paid herein, any amount of principal of any Loan or (ii within five days
after the same becomes due, any interest, fee or any other amount payable
hereunder or under any other Loan Document.
(b Representation or Warranty. Any representation or warranty by
the Company or any Subsidiary made or deemed made herein or in any other Loan
Document, or which is contained in any certificate, document or financial or
other written statement by the Company, any Subsidiary or any Responsible
Officer furnished at any time under this Agreement or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made.
(c Specific Defaults. The Company fails to perform or observe any
term, covenant or agreement contained in Article VII.
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(d Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document
(any such failure being referred to in this Section 8.1(d as a "default" and
such default shall continue unremedied for a period of 30 days after (i the
date upon which written notice of such default is given to the Company by the
Administrative Agent or (ii if the Company fails to promptly notify the
Administrative Agent and the Lenders of the occurrence of any default in
accordance with Section 6.3, the date on which the Company has actual knowledge
of such default.
(e Cross-Default. The Company or any Subsidiary (i fails to make
any payment of Material Financial Obligations when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise, but after
giving effect to any applicable grace or cure period; or (ii fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under one or more agreements or instruments relating to
Material Financial Obligations, if the effect of such failure, event or
condition is to cause (or require, or to permit the holder or holders of such
Material Financial Obligations (or the beneficiary or beneficiaries of such
Material Financial Obligations (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries to cause (or require, such
Material Financial Obligations to become due and payable (or to be purchased,
repurchased, defeased or cash collateralized prior to the stated maturity
thereof.
(f Insolvency; Voluntary Proceedings. The Company or any Material
Subsidiary (i generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii voluntarily ceases to conduct its
business in the ordinary course; (iii commences any Insolvency Proceeding with
respect to itself; or (iv takes any action to effectuate or authorize any of
the foregoing; provided that the foregoing shall not apply to the voluntary
liquidation, dissolution or winding up of a Subsidiary permitted by Section 6.4.
(g Involuntary Proceedings. (i Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process is
issued or levied against a substantial part of the Company's or any such
Subsidiary's properties, and such proceeding or petition shall not be dismissed,
or such writ, judgment, warrant of attachment, execution or similar process
shall not be released, vacated or fully bonded, within 60 days after
commencement, filing or levy; (ii the Company or any Material Subsidiary admits
the material
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allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law is ordered in any Insolvency
Proceeding with respect to the Company or such Subsidiary; or (iii the Company
or any Material Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor,
or other similar Person for itself or a substantial portion of its property or
business.
(h ERISA. (i An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $20,000,000;
(ii a contribution failure shall occur with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f of ERISA; or (iii the
Company or any ERISA Affiliate shall fail to pay when due, after the expiration
of any applicable grace period (or any period during which (x the Company is
permitted to contest its obligation to make such payment without incurring any
liability (other than interest or penalty and (y the Company is contesting
such obligation in good faith and by appropriate proceedings, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA or
any contribution obligation under Section 4243 of ERISA, in each case under a
Multiemployer Plan in an aggregate amount in excess of $30,000,000.
(i Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by insurance as to which the insurer does not dispute coverage as
to any single or related series of transactions, incidents or conditions of
$50,000,000 or more, and the same shall remain unvacated and unstayed pending
appeal for a period of 30 days after the entry thereof.
(j Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
(k Change of Control. Any Change of Control occurs.
VIII.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Majority Lenders,
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(a declare the commitment of each Lender to make Loans (including
the commitment of the Swing Line Lender to make Swing Line Loans to be
terminated, whereupon such commitments shall be terminated;
(b declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c exercise on behalf of itself and the Lenders all other rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided that upon the occurrence of any event specified in subsection (f or
(g of Section 8.1 (in the case of clause (i of subsection (g, upon the
expiration of the 60-day period mentioned therein, the obligation of each
Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent or any other Lender. The Administrative Agent shall
promptly notify the Company of any declaration described in clause (a or (b of
the preceding sentence, but failure to give any such notice shall not impair any
such declaration or result in any liability to the Administrative Agent.
VIII.3 Notice of Defaults. The Administrative Agent shall give notice to
the Company under subsection 8.1(d(i promptly upon being requested to do so by
any Lender and shall thereupon notify all the Lenders thereof.
VIII.4 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
IX.1 Appointment and Authorization; "Administrative Agent". (a Each Lender
hereby irrevocably (subject to Section 9.9 appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b The Swing Line Lender shall have all of the benefits and
immunities (i provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Swing Line Lender in
connection with Swing Line Loans made or proposed to be made by it as fully as
if the term "Administrative Agent", as used in this Article IX, included the
Swing Line Lender with respect to such acts or omissions and (ii as
additionally provided in this Agreement with respect to the Swing Line Lender.
IX.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
IX.3 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i be liable to any Lender for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct, or (ii be responsible in any
manner to any of the Lenders for any recital,
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statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
IX.4 Reliance by Administrative Agent. (a The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company, independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Majority Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
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IX.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". If the Administrative Agent receives such
a notice, the Administrative Agent will notify the Lenders of its receipt of
such notice. The Administrative Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as may be requested by the
Majority Lenders in accordance with this Article IX; provided, however, that
unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest of
the Lenders.
IX.6 Credit Decision. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Administrative Agent-Related
Person to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon any Administrative Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations,
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property, financial and other condition or creditworthiness of the Company which
may come into the possession of any Administrative Agent-Related Person.
IX.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation of
the Company to do so, pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to any Administrative Agent-Related Person of any portion of the Indemnified
Liabilities resulting from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the termination of this Agreement, the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
IX.8 Administrative Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though Bank of America were not
the Administrative Agent or the Swing Line Lender hereunder and without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Administrative Agent or the
Swing Line Lender.
IX.9 Successor Administrative Agent. The Administrative Agent may, and at
the request of the Majority Lenders shall, resign as Administrative Agent upon
30 days' notice to the
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Lenders. If the Administrative Agent resigns under this Agreement, the Majority
Lenders (with, so long as no Event of Default exists, the consent of the
Company, which shall not be unreasonably withheld or delayed shall appoint from
among the Lenders a successor administrative agent for the Lenders. If no
successor administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Company, a successor administrative
agent from among the Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, such successor administrative agent
shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.4 and
10.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Majority
Lenders appoint a successor administrative agent as provided for above.
Notwithstanding the foregoing, however, Bank of America may not be removed as
the Administrative Agent at the request of the Majority Lenders unless Bank of
America and any applicable Affiliate thereof shall also simultaneously be
replaced as "Swing Line Lender" hereunder pursuant to documentation in form and
substance reasonably satisfactory to Bank of America.
IX.10 Withholding Tax. (a If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Administrative
Agent and the Company, to deliver to the Administrative Agent (with a copy to
the Company:
(i if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS
Forms 1001 and W-8 (or any successor form before the payment of any
interest in the first calendar year and before the payment of any interest
in each third succeeding calendar year during which interest may be paid
under this Agreement;
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(ii if such Lender claims that interest paid under this Agreement
is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, two
properly completed and executed copies of IRS Form 4224 before the payment
of any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid
under this Agreement, and IRS Form W-9 (or any successor form; and
(iii such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent and the
Company of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b If any Lender claiming exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 (or
any successor form sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations owed to such Lender, such Lender agrees
to notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Lender. To the
extent of such percentage amount, the Administrative Agent will treat such
Lender's IRS Form 1001 (or any successor form as no longer valid.
(c If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 (or any successor form with the Administrative
Agent grants a participation in all or part of the Obligations owed to such
Lender, such Lender agrees to undertake sole responsibility for complying with
the withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(d If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by subsection (a of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
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(e If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent or
the Company did not properly withhold tax from amounts paid to or for the
account of any Lender because such Lender failed to notify the Administrative
Agent or the Company of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective such Lender shall indemnify
the Administrative Agent and the Company fully for all amounts paid, directly or
indirectly, by the Administrative Agent or the Company as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent or the Company
under this Section, together with all costs and expenses (including Attorney
Costs. The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
IX.11 Other Agents. None of the Lenders identified on the facing or
signature s of this Agreement or any related document as a "Documentation
Agent," "Syndication Agent," "Managing Agent" or "Co-Agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as a "Documentation Agent" or
"Syndication Agent" shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
X.1 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Lenders
and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no such waiver, amendment or
consent shall, unless in writing and signed by all Lenders and the Company and
acknowledged by the Administrative Agent, do any of the following:
(a increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.2;
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(b postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them hereunder or under any other Loan Document;
(c reduce the principal of, or the rate of interest specified herein
on, any Loan, or reduce any fees (other than the fees referred to in subsection
2.11(a, or other amounts payable hereunder or under any other Loan Document;
(d change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Lenders or any of them
to take any action hereunder; or
(e amend this Section, or Section 2.15, or any provision herein
providing for consent or other action by all Lenders;
and provided, further, that (i no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority
Lenders or all Lenders, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document and (ii no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Majority Lenders or all Lenders, as the case may
be, affect the rights or duties of the Swing Line Lender under this Agreement or
any other Loan Document.
X.2 Notices. (a All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 10.2, and (ii shall be followed promptly by delivery of a hard copy
original thereof and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 10.2 or (x in the case of the Company
or the Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties and (y in the case of any
other party, at such other address as shall be designated by such party in a
written notice to the Company and the Administrative Agent.
(b All such notices, requests, consents, approvals, waivers and
communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third
Business Day
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after the date deposited into the U.S. mail, certified or registered mail,
return receipt requested or if delivered, upon delivery; except that notices
pursuant to Article II or IX to the Administrative Agent or the Swing Line
Lender, as the case may be, shall not be effective until actually received by
the Administrative Agent or the Swing Line Lender, as the case may be.
(c Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected in any way or
to any extent by any failure by the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in the telephonic or facsimile notice.
X.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
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X.4 Costs and Expenses. The Company shall:
(a whether or not the transactions contemplated hereby are
consummated, pay or reimburse Bank of America (including in its capacity as
Administrative Agent and Swing Line Lender and BAS within five Business Days
after demand (subject to subsection 4.1(e for all reasonable costs and
expenses incurred by Bank of America (including in its capacity as
Administrative Agent and Swing Line Lender and BAS in connection with the
negotiation, preparation, delivery, documentation and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated, this Agreement, any other Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by Bank of America (including in its capacity as Administrative Agent and Swing
Line Lender and BAS with respect thereto; and
(b pay or reimburse the Administrative Agent, BAS and each Lender
within five Business Days after demand for all reasonable costs and expenses
(including Attorney Costs incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document (including in connection with any "workout"
or restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding.
X.5 Company Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the
Administrative Agent-Related Persons and each Lender and each of their
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each an "Indemnified Person" harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"; provided that the
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Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive the termination of this Agreement and the payment of all other
Obligations.
X.6 Payments Set Aside. To the extent that the Company makes a payment to
the Administrative Agent or the Lenders, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion to be repaid to a trustee, a receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
X.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
X.8 Assignments, Participations, etc. (a Any Lender may, with the written
consent of the Company (which consent shall not be required during the existence
of an Event of Default, and the Administrative Agent (such consents not to be
unreasonably withheld or delayed, at any time assign and delegate to one or
more Eligible Assignees (provided that no written consent of the Company or the
Administrative Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender (each an "Assignee" all, or any ratable part of all, of the Committed
Loans, the Commitments and the other rights and obligations of such Lender
hereunder, in a minimum amount of $5,000,000 (or, if less, the amount of such
Lender's Commitment; provided, however, that the Company and the Administrative
Agent may continue to deal solely and directly with such Lender in connection
with the interest so assigned to an Assignee until (i written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Company
and the Administrative Agent by such Lender and the Assignee; (ii such Lender
and its Assignee shall
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have delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit J ("Assignment and Acceptance" together with
any Note or Notes subject to such assignment and (iii such Lender or the
Assignee has paid to the Administrative Agent a processing fee in the amount of
$3,500.
(b From and after the date that the Administrative Agent notifies the
assignor Lender that it has received and provided its consent (and, to the
extent required, received the consent of the Company with respect to an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
(c As soon as practicable after the effectiveness of any Assignment
and Acceptance pursuant to subsection 10.8(a, the Company shall, upon request,
execute and deliver to the Administrative Agent a new Note evidencing the
applicable Assignee's assigned Loans and Commitment. Immediately upon the
effectiveness of any Assignment and Acceptance, this Agreement shall be deemed
to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and/or the resulting adjustment of the Commitments
arising therefrom.
(d Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant" participating
interests in any Loans, the Commitment of such Lender and the other interests of
such Lender (the "originating Lender" hereunder and under the other Loan
Documents; provided, however, that (i the originating Lender's obligations
under this Agreement shall remain unchanged, (ii the originating Lender shall
remain solely responsible for the performance of such obligations, (iii the
Company, the Swing Line Lender and the Administrative Agent shall continue to
deal solely and directly with the originating Lender in connection with the
originating Lender's rights and obligations under this Agreement and the other
Loan Documents, and (iv no Lender shall transfer or grant any participating
interest under which a Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Lenders as described in the first proviso to Section
10.1. In the case of any such participation, the Participant shall be entitled
to the
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benefit of Sections 3.1, 3.3, 3.4 and 10.5 as though it were also a Lender
hereunder (provided that no Participant shall be entitled to any greater amount
pursuant to such Sections than the originating Lender would have been entitled
to receive if no such participation had been sold, and if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
(e Any Lender (a "Granting Lender" may grant to a special purpose
funding vehicle (an "SPC", identified as such in writing from time to time by
such Granting Lender to the Administrative Agent and the Company, the option to
provide all or any part of any Committed Loan that such Granting Lender would
otherwise be obligated to make to the Company pursuant to this Agreement;
provided that (i nothing herein shall constitute a commitment by any SPC to
make any Committed Loan and (ii if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of any Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof. The making of a Committed Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Committed
Loan were made by such Granting Lender. 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 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, or join
any other Person in instituting, against such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under the laws
of the United States or any State thereof with respect to any claim arising out
of this Agreement. In addition, notwithstanding anything to the contrary
contained in this subsection 10.8(e, any SPC may (i withnotice to, but without
the prior written consent of, the Company and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Committed Loans to the Granting Lender or to any financial
institution providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Committed Loans and (ii
disclose on a confidential basis any non-public information relating to its
Committed Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC.
78
85
(f Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and any Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
X.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on the Company's or such Subsidiary's behalf, under
this Agreement or any other Loan Document (including any information provided
pursuant to Section 6.2, 6.3 or 6.10, and neither such Lender nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the Company or any
Subsidiary; except to the extent such information (i was or becomes generally
available to the public other than as a result of disclosure by such Lender, or
(ii was or becomes available on a non-confidential basis from a source other
than the Company, provided that such source is not bound by a confidentiality
agreement with the Company or any Subsidiary known to such Lender; provided,
however, that any Lender may disclose such information (A at the request or
pursuant to any requirement of any Governmental Authority to which such Lender
is subject or in connection with an examination of such Lender by any such
authority; (B pursuant to subpoena or other court process; (C when required to
do so in accordance with the provisions of any applicable Requirement of Law;
(D to the extent reasonably required in connection with any litigation or
proceeding to which the Administrative Agent or any Lender or any of their
respective Affiliates may be party; (E to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document; (F to such Lender's independent auditors and other professional
advisors; (G to any Participant or Assignee, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder; (H as to any Lender or any of its
Affiliates, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Company or any Subsidiary is
party or is deemed party with such Lender or such Affiliate; and (I to its
Affiliates.
79
86
X.10 Set-off. In addition to any rights and remedies of the Lenders
provided by law, if any Event of Default exists, each Lender is authorized at
any time and from time to time, without prior notice to the Company, any such
notice being expressly waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the Company
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
X.11 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Administrative Agent in writing of any change in the address to which
notices to such Lender should be directed, of addresses of any Lending Office,
of payment instructions in respect of all payments to be made to it hereunder
and of such other administrative information as the Administrative Agent shall
reasonably request.
X.12 Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of which taken together shall be deemed to constitute but one and the same
instrument.
X.13 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
X.14 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Administrative Agent-Related Persons and the
Indemnified Persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
X.15 Governing Law and Jurisdiction. (a THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE
80
87
ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR
OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND
THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
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 ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
X.16 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
X.17 Entire Agreement. This Agreement, together with the other Loan
Documents (and any agreement relating to fees referred in subsection 2.11(a,
embodies the entire agreement and understanding among the Company, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
81
88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
TENNECO PACKAGING INC.
By:
---------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
---------------------------------
Title:
------------------------------
BANK OF AMERICA, N.A., as Swing Line
Lender and as a Lender
By:
---------------------------------
Title:
------------------------------
S-1
89
CREDIT SUISSE FIRST BOSTON, as
Syndication Agent and as a Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
S-2
90
BANK ONE, NA
(Main Office Chicago,
as Co-Documentation Agent and as a
Lender
By:
-------------------------------------
Title:
----------------------------------
S-3
91
BANQUE NATIONALE DE PARIS, as Co-
Documentation Agent and as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-4
92
THE BANK OF NEW YORK, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-5
93
THE CHASE MANHATTAN BANK, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-6
94
CITICORP USA, INC., as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-7
00
XXXXXXXXXXX XX, XXX XXXX AND GRAND
CAYMAN BRANCHES, as a Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
S-8
96
FIRST UNION NATIONAL BANK, as a
Lender
By:
-------------------------------------
Title:
----------------------------------
X-0
00
XXXXXXXX XXXX PLC, as a Lender
By:
-------------------------------------
Title:
----------------------------------
X-00
00
XXXXXXXX XXXX, X.X
By:
-------------------------------------
Title:
----------------------------------
S-11
99
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-12
100
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-13
101
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-14
102
THE SUMITOMO BANK, LIMITED, as a
Lender
By:
-------------------------------------
Title:
----------------------------------
S-15
103
SUNTRUST BANK, ATLANTA, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-16
104
BANK HAPOALIM B.M., as a Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
X-00
000
XXXXXXXXXX XXXXXXXXXX GIROZENTRALE,
CAYMAN ISLANDS BRANCH, as a Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
S-18
106
BANCA COMMERCIALE ITALIANA, CHICAGO
BRANCH, as a Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
S-19
107
THE DAI-ICHI KANGYO BANK, LTD., as a
Lender
By:
-------------------------------------
Title:
----------------------------------
S-20
108
SOCIETE GENERALE, as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-21
109
BBL INTERNATIONAL (U.K. LIMITED, as
a Lender
By:
-------------------------------------
Title:
----------------------------------
S-22
110
SCHEDULE 1.1
PRICING SCHEDULE
The Applicable Margin, the Facility Fee Rate and the Utilization Fee
Rate, respectively, shall be determined in accordance with the table below and
the other provisions of this Schedule 1.1.
========================================================================================
XXXXX XXXXX XXXXX XXXXX XXXXX
----------------------------------------------------------------------------------------
I II III IV V
Applicable Margin 0.400% 0.625% 0.700% 0.800% 1.00%
----------------------------------------------------------------------------------------
Facility Fee Rate 0.100% 0.125% 0.175% 0.200% 0.250%
----------------------------------------------------------------------------------------
Utilization Fee Rate 0.100% 0.125% 0.125% 0.175% 0.250%
===== ===== ===== ===== =====
========================================================================================
Level I applies when either the S&P Rating is A- or higher or the
Xxxxx'x Rating is A3 or higher;
Level II applies when either the S&P Rating is BBB+ or higher or the
Xxxxx'x Rating is Baa1 or higher;
Level III applies when either the S&P Rating is BBB or higher or the
Xxxxx'x Rating is Baa2 or higher;
Level IV applies when either the S&P Rating is BBB- or higher or the
Xxxxx'x Rating is Baa3 or higher; and
Level V applies when the S&P Rating is lower than BBB- and the Xxxxx'x
Rating is lower than Baa3;
provided that at any time the S&P Rating and Xxxxx'x Rating are more than one
rating level apart, the Applicable Margin, the Facility Fee Rate and the
Utilization Fee Rate shall be based on the level immediately below the higher of
such levels. If at any time there exists neither a Xxxxx'x Rating nor an S&P
Rating, the Applicable Margin, the Facility Fee Rate and the Utilization Fee
Rate during such time shall be determined as set forth above for Level V. Any
change in the Applicable Margin, the Facility Fee Rate and the Utilization Fee
Rate as a result of a change in either the S&P Rating and/or the Xxxxx'x Rating
shall be effective as of the day immediately following such change.
111
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
---------------------------------------------------------------------------------------
Lender Commitment Pro Rata Share
---------------------------------------------------------------------------------------
Bank of America, N.A. $ 57,750,000.00 7.700000000%
--------------------------------------------------------------------------------------
Credit Suisse First Boston 54,000,000.00 7.200000000%
--------------------------------------------------------------------------------------
Bank One, NA 54,000,000.00 7.200000000%
--------------------------------------------------------------------------------------
Banque Nationale de Paris 54,000,000.00 7.200000000%
--------------------------------------------------------------------------------------
The Bank of New York 42,750,000.00 5.700000000%
--------------------------------------------------------------------------------------
The Chase Manhattan Bank 42,750,000.00 5.700000000%
--------------------------------------------------------------------------------------
Citicorp USA, Inc. 42,750,000.00 5.700000000%
--------------------------------------------------------------------------------------
Commerzbank AG, New York and Grand 42,750,000.00 5.700000000%
Cayman Branches
--------------------------------------------------------------------------------------
First Union National Bank 42,750,000.00 5.700000000%
--------------------------------------------------------------------------------------
Barclays Bank PLC 42,750,000.00 5.700000000%
--------------------------------------------------------------------------------------
Wachovia Bank, N.A. 33,750,000.00 4.500000000%
--------------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited 26,250,000.00 3.500000000%
--------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd., 26,250,000.00 3.500000000%
Chicago Branch
--------------------------------------------------------------------------------------
Xxxxxx Guaranty Trust Company of New 26,250,000.00 3.500000000%
York
--------------------------------------------------------------------------------------
The Sumitomo Bank, Limited 26,250,000.00 3.500000000%
--------------------------------------------------------------------------------------
Suntrust Bank, Atlanta 26,250,000.00 3.500000000%
--------------------------------------------------------------------------------------
Bank Hapoalim B.M. 22,500,000.00 3.000000000%
--------------------------------------------------------------------------------------
Bayerische Landesbank Girozentrale, 18,750,000.00 2.500000000%
Cayman Islands Branch
--------------------------------------------------------------------------------------
Banca Commerciale Italiana, Chicago 18,750,000.00 2.500000000%
Branch
--------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. 18,750,000.00 2.500000000%
--------------------------------------------------------------------------------------
Societe Generale 18,750,000.00 2.500000000%
--------------------------------------------------------------------------------------
BBL International (U.K. Limited 11,250,000.00 1.500000000%
================ ===========
TOTAL $ 750,000,000.00 100.00%
--------------------------------------------------------------------------------------
1
112
Schedule 5.5
Litigation
113
Schedule 5.12
Environmental Matters
114
Schedule 5.16
Subsidiaries and Minority Interests
115
Schedule 7.2
Permitted Liens
116
SCHEDULE 10.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES