Exhibit 4.14
Published Deal CUSIP Number: 00000XXX0
CREDIT AGREEMENT
Dated as of December 3, 2004
among
SEABOARD CORPORATION,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and a L/C Issuer,
SCOTIA CAPITAL, INC.,
as Syndication Agent,
and
XXXXXX TRUST AND SAVINGS BANK
and
SUNTRUST BANK,
as Co-Documentation Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
SCOTIA CAPITAL INC.,
as
Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 21
1.03 Accounting Matters 22
1.04 Times of Day 23
1.05 Letter of Credit Amounts 23
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans 23
2.02 Borrowings, Conversions and Continuations of Committed
Loans 23
2.03 Letters of Credit. 25
2.04 Swing Line Loans 34
2.05 Prepayments 37
2.06 Termination or Reduction of Commitments 37
2.07 Repayment of Loans 38
2.08 Interest 38
2.09 Fees 39
2.10 Computation of Interest and Fees 39
2.11 Evidence of Debt 39
2.12 Payments Generally; Administrative Agent's Clawback 40
2.13 Sharing of Payments by Lenders 42
2.14 Increase in Commitments 42
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 43
3.02 Illegality 46
3.03 Inability to Determine Rates 46
3.04 Increased Costs; Reserves on Eurodollar Rate Loans 47
3.05 Compensation for Losses 48
3.06 Mitigation Obligations; Replacement of Lenders 49
3.07 Survival 49
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension 50
4.02 Conditions to all Credit Extensions 51
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with
Laws 52
5.02 Authorization; No Contravention 52
5.03 Governmental Authorization; Other Consents 52
5.04 Binding Effect 53
5.05 Financial Statements; No Material Adverse Effect 53
5.06 Litigation 53
5.07 No Default 53
5.08 Ownership of Property; Liens 54
5.09 Environmental Compliance 54
5.10 Insurance 54
5.11 Taxes 54
5.12 ERISA Compliance 54
5.13 Subsidiaries; Equity Interests 55
5.14 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act 55
5.15 Disclosure 55
5.16 Compliance with Laws 56
5.17 Intellectual Property; Licenses, Etc 56
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements 56
6.02 Certificates; Other Information 57
6.03 Notices 59
6.04 Payment of Obligations 59
6.05 Preservation of Existence, Etc 59
6.06 Maintenance of Properties 60
6.07 Maintenance of Insurance 60
6.08 Compliance with Laws 60
6.09 Books and Records 60
6.10 Inspection Rights 60
6.11 Use of Proceeds 61
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Negative Pledge 61
7.02 Investments 63
7.03 Subsidiary Indebtedness 64
7.04 Fundamental Changes 65
7.05 Dispositions 65
7.06 Restricted Payments 66
7.07 Change in Nature of Business 67
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7.08 Transactions with Affiliates 67
7.09 Burdensome Agreements 67
7.10 Use of Proceeds 67
7.11 Acquisitions 68
7.12 Financial Covenants 68
7.13 Amendments to Senior Note Agreements and Seaboard
Overseas Credit Facility 68
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default 69
8.02 Remedies Upon Event of Default 71
8.03 Application of Funds 71
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority 72
9.02 Rights as a Lender 72
9.03 Exculpatory Provisions 72
9.04 Reliance by Administrative Agent 73
9.05 Delegation of Duties 74
9.06 Resignation of Administrative Agent; L/C Issuer 74
9.07 Non-Reliance on Administrative Agent and Other Lenders 75
9.08 No Other Duties, Etc 75
9.09 Administrative Agent May File Proofs of Claim 75
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc 76
10.02 Notices; Effectiveness; Electronic Communication 77
10.03 No Waiver; Cumulative Remedies 79
10.04 Expenses; Indemnity; Damage Waiver 79
10.05 Payments Set Aside 81
10.06 Successors and Assigns 81
10.07 Treatment of Certain Information; Confidentiality 85
10.08 Right of Setoff 86
10.09 Interest Rate Limitation 86
10.10 Counterparts; Integration; Effectiveness 86
10.11 Survival of Representations and Warranties 86
10.12 Severability 87
10.13 Replacement of Lenders 87
10.14 Governing Law; Jurisdiction; Etc 88
10.15 Waiver of Jury Trial 88
10.16 USA PATRIOT Act Notice 89
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SCHEDULES
1.01(a) Existing Letters of Credit
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain
Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F-1 Opinion of Shook, Hardy & Bacon, L.L.P.
F-2 Opinion of Xxxxx Mulliss & Wicker, PLLC
G Letter of Credit Information Report
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 3,
2004, among SEABOARD CORPORATION, a Delaware corporation (the
"Borrower"), each lender from time to time party hereto
(collectively, the "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and a L/C Issuer.
The Borrower has requested that the Lenders provide a
revolving credit facility, and the Lenders are willing to do so
on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"1993 Senior Note Agreements" means the Note Purchase
Agreements dated as of December 1, 1993, among the Borrower and
the purchasers of the Borrower's 1993 Senior Notes, as amended by
the First Amendment to Note Agreements dated as of March 31,
1994, and the Second Amendment to Note Agreements dated as of
September 30, 2002.
"1993 Senior Notes" means, collectively, the Borrower's
6.49% Senior Notes due December 1, 2005, issued in an initial
aggregate principal amount of $100,000,000.
"1995 Senior Note Agreements" means the Note Purchase
Agreements dated as of June 1, 1995, among the Borrower and the
purchasers of the Borrower's 1995 Senior Notes, as amended by the
First Amendment to Note Agreements dated as of December 15, 1995,
and the Second Amendment to Note Agreements dated as of September
30, 2002.
"1995 Senior Notes" means, collectively, the Borrower's
7.88% Senior Notes due June 1, 2007, issued in an initial
aggregate principal amount of $125,000,000.
"2002 Senior Note Agreements" means the Note Purchase
Agreements dated as of September 30, 2002, among the Borrower and
the purchasers of the Borrower's 2002 Senior Notes.
"2002 Senior Notes" means, collectively, the Borrower's (a)
5.80% Senior Notes, Series A, due September 30, 2009, issued in
an initial aggregate principal amount of $32,500,000, (b) 6.21%
Senior Notes, Series B, due September 30, 2009, issued in an
initial aggregate principal amount of $38,000,000, (c) 6.21%
Senior Notes, Series C, due September 30, 2012, issued in an
initial aggregate principal amount of $7,500,000, and (d) 6.92%
Senior Notes, Series D, due September 30, 2012, issued in an
initial aggregate principal amount of $31,000,000.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition by the Borrower or a
Subsidiary of all or
substantially all of the assets of a Person,
or of any line of business or division of a Person, or (b) the
acquisition by the Borrower or a Subsidiary of in excess of 50%
of the Equity Interests of any Person (other than a Person
already a Subsidiary), or otherwise causing any Person to become
a Subsidiary.
"Administrative Agent" means Bank of America in its capacity
as administrative agent under any of the Loan Documents, or any
successor administrative agent.
"Administrative Agent's Office" means the Administrative
Agent's address and, as appropriate, account as set forth on
Schedule 10.02 or such other address or account as the
Administrative Agent may from time to time notify to the Borrower
and the Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another
Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the
Lenders.
"Agreement" means this Credit Agreement.
"Applicable Percentage" means with respect to any Lender at
any time, the percentage (carried out to the ninth decimal place)
of the Aggregate Commitments represented by such Lender's
Commitment at such time. If the commitment of each Lender to
make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Applicable Rate" means the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(a):
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Applicable Rate
Eurodollar
Rate +
Standby Commercial
Pricing Consolidated Facility Letter of Letters of Base
Level Leverage Ratio Fee Credit Credit Rate +
1 Less than or 0.2000% 0.5500% 0.1375% 0.0000%
equal to 1.50
to 1.00
2 Greater than 0.2250% 0.6500% 0.1625% 0.000%
1.50 to 1.00
but less than
or equal to
2.00 to 1.00
3 Greater than 0.2500% 0.7500% 0.1875% 0.0000%
2.00 to 1.00
but less than
or equal to
2.50 to 1.00
4 Greater than 0.3000% 0.9500% 0.2375% 0.0000%
2.50 to 1.00
but less than
or equal to
3.00 to 1.00
5 Greater than 0.3500% 1.1500% 0.2875% 0.0000%
3.00 to 1.00
but less than
or equal to
3.50 to 1.00
6 Greater than 0.4000% 1.3500% 0.3375% 0.2500%
3.50 to 1.00
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective
as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing
Level 6 shall apply as of the first Business Day after the date
on which such Compliance Certificate was required to have been
delivered until the first Business Day after the date on which
such Compliance Certificate is actually delivered. The
Applicable Rate in effect from the Closing Date through the first
Business Day immediately following the date a Compliance
Certificate is delivered or required to be pursuant to Section
6.02(a) for the fiscal year ended December 31, 2004 shall be
determined based upon the Consolidated Leverage Ratio set forth
in the Compliance Certificate delivered on the Closing Date
pursuant to Section 4.01(a)(vii).
"Approved Fund" means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
"Arrangers" means BAS and Scotia Capital, Inc., in their
capacities as joint lead arrangers and joint book managers.
"Assignment and Assumption" means an assignment and
assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by
the Administrative Agent.
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"Attributable Indebtedness" means, on any date, (a) in
respect of any capital lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in
respect of any Synthetic Lease Obligation, the capitalized amount
of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease were accounted
for as a capital lease, and (c) in respect of any asset
securitization transaction of any Person, (i) the actual amount
of any unrecovered investment of purchasers or transferees of
assets so transferred, plus (ii) in the case of any other
recourse, repurchase, or debt obligation described in clause (a)
of the definition of "Off-Balance Sheet Liabilities," the
capitalized amount of such obligation that would appear on a
balance sheet of such Person prepared on such date in accordance
with GAAP if such sale or transfer or assets were accounted for
as a secured loan.
"Audited Financial Statements" means the audited
consolidated balance sheet of the Borrower and its Subsidiaries
and Consolidated Entities for the fiscal year ended December 31,
2003, and the related consolidated statements of earnings,
shareholders' equity and cash flows for such fiscal year of the
Borrower and its Subsidiaries and Consolidated Entities,
including the notes thereto.
"Availability Period" means the period from and including
the Closing Date to the earliest of (a) the Maturity Date, (b)
the date of termination of the Aggregate Commitments pursuant to
Section 2.06, and (c) the date of termination of the commitment
of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its
successors.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%
and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime
rate." The "prime 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 such 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 is a
Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"Borrower" has the meaning specified in the introductory
paragraph hereto.
"Borrowing" means a Committed Borrowing or a Swing Line
Borrowing, as the context may require.
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"Xxxxxx Group" means (a) H. Xxxxx Xxxxxx, Xxxx Xxxxxx, Xx.
(brother of H. Xxxxx Xxxxxx) and the estate of Xxxxxxxx Xxxxxxx
(deceased sister of H. Xxxxx Xxxxxx), (b) spouses, heirs,
legatees, lineal descendants, and spouses of lineal descendants,
other blood relatives, step-children, adopted children, and/or
estates or representatives of estates of H. Xxxxx Xxxxxx, Xxxx
Xxxxxx, Xx. and Xxxxxxxx Xxxxxxx, (c) trusts established for the
benefit of spouses, lineal descendants and spouses of lineal
descendants, other blood relatives, step-children, and/or adopted
children of H. Xxxxx Xxxxxx, Xxxx Xxxxxx, Xx., and Xxxxxxxx
Xxxxxxx and (d) any person which is directly or indirectly
Controlled by a person described in the preceding clauses (a),
(b) or (c).
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the
Administrative Agent's Office is located and, if such day relates
to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section
2.03(g).
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in
any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any
Governmental Authority.
"Change of Control" means an event or series of events by
which any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding (x) any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan, (y) Seaboard Flour and (z) any member of the Xxxxxx Group)
(i) becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire
(such right, an "option right"), whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of 50% or more of the equity securities
of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a fully-
diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any
option right), or (ii) shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the
Borrower, or control over the equity securities of the Borrower
entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted
basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option
right) representing 50% or more of the combined voting power of
such securities.
"Closing Date" means the first date all the conditions
precedent in Section 4.01 are satisfied or waived in accordance
with Section 10.01.
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"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a)
make Committed Loans to the Borrower pursuant to Section 2.01,
(b) purchase participations in L/C Obligations and (c) purchase
participations in Swing Line Loans in an aggregate principal
amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of
simultaneous Committed Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed
Borrowing, (b) a conversion of Committed Loans from one Type to
the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit D.
"Consolidated Adjusted Leverage Ratio" means, as of any date
of determination, the ratio of (a) the remainder of Consolidated
Funded Indebtedness as of such date, minus all unencumbered cash
and cash equivalents of the Borrower and its Subsidiaries and
Consolidated Entities as of such date with adjustments for
international tax effects at an assumed withholding rate of 35%,
as applicable, to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.
"Consolidated EBITDA" means, for any period, for the
Borrower and its Subsidiaries and Consolidated Entities on a
consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal,
state, local and foreign income taxes payable by the Borrower and
its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other expenses, losses or charges
of the Borrower and its Subsidiaries and Consolidated Entities
reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period, and minus (b) the
following to the extent included in calculating such Consolidated
Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries and Consolidated
Entities for such period and (ii) all non-cash items and all
other extraordinary, unusual or nonrecurring gains of the
Borrower and its Subsidiaries and Consolidated Entities
increasing Consolidated Net Income for such period.
"Consolidated Entity" means an entity, other than a
Subsidiary, that is subject to consolidation under GAAP.
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"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries and
Consolidated Entities on a consolidated basis, without
duplication, the sum of (a) the outstanding principal amount of
all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced
by bonds, debentures, notes, loan agreements or other similar
instruments, (b) the outstanding principal amount of all purchase
money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar
instruments, (d) the outstanding amount of all obligations in
respect of the deferred purchase price of property or services
(other than trade accounts payable and accrued expenses in the
ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases, Synthetic Lease Obligations and other
Off-Balance Sheet Liabilities, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than
the Borrower, any Subsidiary or any Consolidated Entity, and (g)
all Indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary or any
Consolidated Entity is a general partner or joint venturer,
unless such Indebtedness is non-recourse to the Borrower, such
Subsidiary or such Consolidated Entity.
"Consolidated Interest Charges" means, for any period, for
the Borrower and its Subsidiaries and Consolidated Entities on a
consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of
the Borrower and its Subsidiaries and Consolidated Entities in
connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with
GAAP, (b) the portion of rent expense of the Borrower and its
Subsidiaries and Consolidated Entities with respect to such
period under capital leases that is treated as interest in
accordance with GAAP, and (c) all implicit interest in connection
with Synthetic Lease Obligations and other Off-Balance Sheet
Liabilities.
"Consolidated Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness
as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the
Borrower and its Subsidiaries and Consolidated Entities on a
consolidated basis, the net income (after excluding therefrom any
non-cash charges or credits relating to economic hedging
transactions) of the Borrower and its Subsidiaries and
Consolidated Entities (excluding extraordinary gains but
including extraordinary losses) for that period.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Borrower and its Subsidiaries and
Consolidated Entities on a consolidated basis, Shareholders'
Equity (after excluding therefrom any non-cash charges or credits
relating to economic hedging transactions) on such date minus the
Intangible Assets of the Borrower and its Subsidiaries and
Consolidated Entities on such date.
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"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (a) Consolidated Funded Indebtedness
and (b) Shareholders' Equity (after excluding therefrom any non-
cash charges or credits relating to economic hedging
transactions) on such date.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Cost of Acquisition" means, with respect to any
Acquisition, as at the date of entering into any agreement
therefor, the sum of the following (without duplication): (a)
the value of the Equity Interests of the Borrower or any
Subsidiary to be transferred in connection therewith, (b) the
amount of any cash and fair market value of other property
(excluding property described in clause (a) and the unpaid
principal amount of any debt instrument) given as consideration,
(c) the amount (determined by using the face amount or the amount
payable at maturity, whichever is greater) of any Indebtedness
incurred, assumed or acquired by the Borrower or any Subsidiary
in connection with such Acquisition, (d) all additional purchase
price amounts in the form of earnouts and other contingent
obligations that should be recorded on the financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, (e)
all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial
statements of the Borrower and its Subsidiaries in accordance
with GAAP, and other affiliated contracts in connection with such
Acquisition, (f) the aggregate fair market value of all other
consideration given by the Borrower or any Subsidiary in
connection with such Acquisition, and (g) out of pocket
transaction costs for the services and expenses of attorneys,
accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred.
For purposes of determining the Cost of Acquisition for any
transaction, the capital stock of the Borrower or a Subsidiary
shall be valued (A) in the case of capital stock that is then
designated as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed
on a national securities exchange, the average of the last
reported bid and ask quotations or the last prices reported
thereon, and (B) with respect to any other Equity Interests, as
determined by a committee composed of the disinterested members
of the Board of Directors of the Borrower and, if requested by
the Administrative Agent, determined to be a reasonable valuation
by the independent public accountants referred to in Section
6.01(a), and (C) with respect to any Acquisition accomplished
pursuant to the exercise of options or warrants or the conversion
of securities, the Cost of Acquisition shall include both the
cost of acquiring such option, warrant or convertible security as
well as the cost of exercise or conversion.
"Credit Extension" means each of the following: (a) a
Borrowing and (b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or
similar debtor relief Laws of the
8
United States or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an
Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means (a) when used with respect to
Obligations other than Letter of Credit Fees, an interest rate
equal to (i) the Base Rate plus (ii) the Applicable Rate, if any,
applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 2% per
annum.
"Defaulting Lender" means any Lender that (a) has failed to
fund any portion of the Committed Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be
funded by it hereunder within one Business Day of the date
required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good
faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer,
license, sales-type or direct financing lease or other
disposition (including any sale and leaseback transaction) of any
property by any Person, including any sale, assignment, transfer
or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated
therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of
a Lender; (c) an Approved Fund; and (d) any other financial
institution approved by (i) the Administrative Agent, the L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of
Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries; and provided further, however, that an Eligible
Assignee shall include only a Lender, an Affiliate of a Lender or
another financial institution, which, through its Lending
Offices, is capable of lending Dollars to the Borrower without
the imposition of any Taxes, additional Taxes or Other Taxes, as
the case may be.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or
the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of
the
9
Borrower or any of its Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership
or profit interests in such Person (including partnership, member
or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Borrower within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect
to a Eurodollar Rate Loan, the rate per annum equal to the
British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for
any reason, then the "Eurodollar Rate" for such Interest Period
shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on
the first day of
10
such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section
8.01.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request
by the Borrower under Section 10.13), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law)
to comply with Section 3.01(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new Lending Office (or assignment), to
receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a).
"Existing Letters of Credit" means the Letters of Credit
listed on Schedule 1.01(a).
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of
1%) charged to Bank of America on such day on such transactions
as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated September 22,
2004, among the Borrower, the Administrative Agent and BAS.
"Foreign Lender" means any Lender that is organized under
the laws of a jurisdiction other than that in which the Borrower
is resident for tax purposes. For purposes of this
11
definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"Fund" means any Person (other than a natural person) that
is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles
as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means the government of the United
States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Granting Lender" has the meaning specified in Section
10.06(h).
"Guarantee" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the "primary
obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness
or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the
primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness
or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to
obtain any such Lien); provided, that "Guarantee" shall not
include obligations relating to the endorsement of checks or
other items for collection in the ordinary course of business.
The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the
12
maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term
"Guarantee" as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments;
(b) all direct or contingent obligations of such
Person arising under letters of credit (including standby
and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(c) net obligations of such Person under any Swap
Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade
accounts payable in the ordinary course of business and, in
each case, not past due for more than 60 days and other than
accrued expenses in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under
conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases, Synthetic Lease Obligations and
other Off-Balance Sheet Liabilities;
(g) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint
venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is non-
recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any
capital lease, Synthetic Lease Obligation or other Off-Balance
Sheet Liability
13
as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Intangible Assets" means assets that are considered to be
intangible assets under GAAP, including customer lists, goodwill,
computer software, copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges (but excluding
any deferred taxes), unamortized debt discount and capitalized
research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than
a Base Rate Loan, the last day of each Interest Period applicable
to such Loan and the Maturity Date; provided, however, that if
any Interest Period for a Eurodollar Rate Loan exceeds three
months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), the last Business Day of each March, June,
September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan,
the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter,
as selected by the Borrower in its Committed Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period shall extend beyond the
Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a)
the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase
or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint
venture interest in such other Person and any arrangement
pursuant to which the investor Guarantees Indebtedness of such
other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another
Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
14
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the Institute
of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
"Issuer Documents" means with respect to any Letter of
Credit, the Letter Credit Application, and any other document,
agreement and instrument entered into by the L/C Issuer and the
Borrower (or any Subsidiary) or in favor the L/C Issuer and
relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the
force of law.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its Applicable Percentage.
"L/C Borrowing" means an extension of credit resulting from
a drawing under any Letter of Credit which has not been
reimbursed on the date when made or refinanced as a Committed
Borrowing.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date
thereof, or the increase of the amount thereof.
"L/C Issuer" means (a) Bank of America in its capacity as
issuer of Letters of Credit hereunder, (b) Bank of Nova Scotia in
its capacity as issuer of Letters of Credit hereunder, (c) Xxxxxx
Trust and Savings Bank in its capacity as issuer of Letters of
Credit hereunder, (d) The Bank of New York in its capacity as
issuer of Letters of Credit hereunder, (e) SunTrust Bank in its
capacity as issuer of Letters of Credit hereunder, and (f) any
successor issuer(s) of Letters of Credit hereunder. All singular
references to the L/C Issuer shall mean any L/C Issuer, either
L/C Issuer, the L/C Issuer that has issued the applicable Letter
of Credit, or all L/C Issuers, as the context may require.
"L/C Obligations" means, as at any date of determination,
the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For purposes of computing the
amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance
with Section 1.05. For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms
but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be "outstanding" in the amount so remaining available
to be drawn.
15
"Lender" has the meaning specified in the introductory
paragraph hereto and, as the context requires, includes the Swing
Line Lender and each L/C Issuer.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such in such Lender's
Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the
Administrative Agent.
"Letter of Credit" means any letter of credit issued
hereunder and shall include the Existing Letters of Credit. A
Letter of Credit may be a commercial letter of credit or a
standby letter of credit.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit in
the form from time to time in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is
seven days prior to the Maturity Date then in effect (or, if such
day is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section
2.03(i).
"Letter of Credit Sublimit" means an amount equal to
$70,000,000. The Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Commitments.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a
Borrower under Article II in the form of a Committed Loan or a
Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each
Issuer Document and the Fee Letter.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower
or the Borrower and its Subsidiaries and Consolidated Entities
taken as a whole; (b) a material impairment of the ability of the
Borrower to perform its obligations under any Loan Document; or
(c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any Loan
Document.
"Maturity Date" means December 2, 2009.
"Multiemployer Plan" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made
or been obligated to make contributions.
16
"Net Cash Proceeds" means, with respect to the sale of any
asset by the Borrower or any Subsidiary, the remainder, if any,
of (i) the sum of cash and cash equivalents received in
connection with such sale (including any cash received by way of
deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) minus
(ii) the sum of (A) the principal amount of any Indebtedness that
is secured by such asset and that is required to be repaid in
connection with the sale thereof, (B) the out-of-pocket expenses
incurred by the Borrower or any Subsidiary in connection with
such sale and (C) income taxes reasonably estimated to be
actually payable within two years of the date of the relevant
asset sale as a result of any gain recognized in connection
therewith.
"Non-Material Subsidiary" means a Subsidiary that,
(a) at no time during the then current fiscal year or
the two then preceding fiscal years of the Borrower,
constituted more than three percent (3%) of consolidated
total assets (as shown on the Borrower's consolidated
balance sheet) or Shareholders' Equity; or
(b) accounted for no more than three percent (3%) of
the revenues of the Borrower and its Subsidiaries,
determined on a consolidated basis, in respect of any one
or more of the then preceding twelve (12) fiscal quarters
of the Borrower.
"Note" means a promissory note made by a Borrower in favor
of a Lender evidencing Loans made by such Lender to the Borrower,
substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower arising under
any Loan Document or otherwise with respect to any Loan or Letter
of Credit, whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or
any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims
in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any
Person as of any date of determination thereof, without
duplication and to the extent not included as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in
accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable
purchase facility), the unrecovered investment of purchasers or
transferees of assets so transferred and the principal amount of
any recourse, repurchase or debt obligations incurred in
connection therewith; and (b) the monetary obligations under any
financing lease or so-called "synthetic," tax retention or off-
balance sheet lease transaction which, upon the application of
any Debtor Relief Law to such Person or any of its Subsidiaries,
would be characterized as indebtedness.
"Organization Documents" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint
17
venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable,
any certificate or articles of formation or organization of such
entity.
"Other Taxes" means all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or
any other Loan Document.
"Outstanding Amount" means (i) with respect to Committed
Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or
repayments of such Committed Loans occurring on such date; (ii)
with respect to Swing Line Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Swing Line Loans
occurring on such date; and (iii) with respect to any L/C
Obligations on any date, the amount of the aggregate outstanding
amount of such L/C Obligations on such date after giving effect
to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements by the Borrower
of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or
to which the Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding
five plan years.
"Permitted Lines of Business" means (a) meat (including
chicken, turkey, beef, lamb and pork), poultry and seafood
production and processing, (b) ocean transportation and related
ground transportation and support, (c) animal feed production and
processing, (d) flour and feed milling, (e) power production,
(f) commodity merchandising, (g) baking, and (h) the holding of
cash and investments held for future use by the Borrower and its
Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by the Borrower or,
with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.
18
"Priority Indebtedness" means, as of any date of
determination, the sum (without duplication) of (a) all
Indebtedness of the Borrower secured by Liens permitted by
Section 7.01(n), plus (b) all Indebtedness of Subsidiaries
permitted by Sections 7.03(c) and (g).
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such
Person's Affiliates.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the 30-day
notice period has been waived.
"Request for Credit Extension" means (a) with respect to a
Borrowing, conversion or continuation of Committed Loans, a
Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination,
Lenders having more than 50% of the Aggregate Commitments or, if
the commitment of each Lender to make Loans and the obligation of
the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more
than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed "held" by such
Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer,
president, chief financial officer, treasurer or assistant
treasurer or any vice president of the Borrower. Any document
delivered hereunder that is signed by a Responsible Officer shall
be conclusively presumed to have been authorized by all necessary
corporate action on the part of the Borrower and such Responsible
Officer shall be conclusively presumed to have acted on behalf of
the Borrower.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
capital stock or other Equity Interest, or on account of any
return of capital to the Borrower's stockholders, partners or
members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Seaboard Flour" means Seaboard Flour LLC, a Delaware
limited liability company.
"Seaboard Overseas" means Seaboard Overseas Limited, a
Bahamian corporation.
19
"Seaboard Overseas Credit Facility" means that certain
Credit Agreement dated as of February 21, 2003, as amended and in
effect on the date hereof, among Seaboard Overseas, Standard
Chartered Bank, as the Administrative Agent, and the other
parties thereto.
"Senior Note Agreements" means collectively, (a) the 1993
Senior Note Agreements, (b) the 1995 Senior Note Agreements, and
(c) the 2002 Senior Note Agreements.
"Senior Notes" means, collectively, (a) the 1993 Senior
Notes, (b) the 1995 Senior Notes, and (c) the 2002 Senior Notes.
"Shareholders' Equity" means, as of any date of
determination, consolidated shareholders' equity of the Borrower
and its Subsidiaries and Consolidated Entities as of that date
determined in accordance with GAAP.
"SPC" has the meaning specified in Section 10.06(h).
"Subsidiary" of a Person means a corporation, partnership,
joint venture, limited liability company or other business entity
of which a majority of the shares of securities or other
interests having ordinary voting power for the election of
directors or other governing body (other than securities or
interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person.
Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any
kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under
any Master Agreement.
"Swap Termination Value" means, in respect of any one or
more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap
Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a),
the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market
or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
20
"Swing Line" means the revolving credit facility made
available by the Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line
Loan pursuant to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line lender
hereunder.
"Swing Line Loan" has the meaning specified in Section
2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing pursuant to Section 2.04(b), which, if in writing,
shall be substantially in the form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $25,000,000 and (b) the Aggregate Commitments. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Synthetic Lease Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic, off-balance sheet or
tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on
the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting
treatment).
"Taxes" means all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other
charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
"Total Outstandings" means the aggregate Outstanding Amount
of all Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its
character as a Base Rate Loan or a Eurodollar Rate 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 that Pension Plan's assets, determined
in accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." mean the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
1.02 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply
equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun
shall
21
include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation." The word "will" shall be construed to
have the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any definition of
or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person's
successors and assigns, (iii) the words "herein," "hereof"
and "hereunder," and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and
regulatory provisions consolidating, amending replacing or
interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such
law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and
contract rights.
(b) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including;" the words "to" and "until" each
mean "to but excluding;" and the word "through" means "to
and including."
(c) Section headings herein and in the other Loan
Documents are included for convenience of reference only and
shall not affect the interpretation of this Agreement or any
other Loan Document.
1.03 Accounting Matters. (a) Generally. All accounting terms
not specifically or completely defined herein shall be construed
in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise
specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a
reconciliation
22
between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
(c) Accounting for Acquisitions. With respect to any
Acquisition having a Cost of Acquisition of at least $50,000,000
consummated on or after the Closing Date, for each of the four
fiscal quarter periods ending next following the date of any
Acquisition, (x) Consolidated EBITDA shall include the historical
results of operations of the Person or assets so acquired, and
which amounts may include such adjustments as are permitted under
Regulation S-X of the SEC and reasonably satisfactory to the
Administrative Agent but (y) for purposes of determining
compliance with the provisions of Section 7.12(a), any increase
in Consolidated Net Income resulting solely from such pro forma
treatment of such Acquisition shall be disregarded.
1.04 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Pacific time
(daylight or standard, as applicable).
1.05 Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect
at such time; provided, however, that with respect to any Letter
of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make loans (each
such loan, a "Committed Loan") to the Borrower from time to time,
on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount
of such Lender's Commitment; provided, however, that after giving
effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Committed
Loans.
(a) Each Committed Borrowing, each conversion of Committed
Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of
23
Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans, (ii) on the requested date
of any Borrowing of Base Rate Committed Loans; provided,
however, that if the Borrower wishes to request Eurodollar Rate
Loans having an Interest Period other than one, two, three or
six months in duration as provided in the definition of
"Interest Period", the applicable notice must be received by
the Administrative Agent not later than 10:00 a.m. four Business
Days prior to the requested date of such Borrowing, conversion
or continuation, whereupon the Administrative Agent shall give
prompt notice to the Lenders of such request and determine
whether the requested Interest Period is acceptable to all of
them. Not later than 10:00 a.m. three Business Days before the
requested date of such Borrowing, conversion or continuation, the
Administrative Agent shall notify the Borrower (which notice may
be by telephone) whether or not the requested Interest Period has
been consented to by all the Lenders. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Committed Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of Committed
Loan in a Committed Loan Notice or if the Borrower fails to give
a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to,
Base Rate Loans. Any automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then
in effect with respect to the applicable Eurodollar Rate Loans.
If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage of the applicable Committed
Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of
a Committed Borrowing denominated in Dollars, each Lender shall
make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 12:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Borrower or the other
applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such
funds or
24
(ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date the Committed Loan Notice
with respect to such Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any
such L/C Borrowings, and, second, shall be made available to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan
may be continued or converted only on the last day of an Interest
Period for such Eurodollar Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued
as Eurodollar Rate Loans without the consent of the Required
Lenders.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding,
the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there
shall not be more than ten Interest Periods in effect with
respect to Committed Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the
Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower or its Subsidiaries, and to amend
or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the
Borrower or its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment, and (z) the Outstanding Amount of the
L/C Obligations shall not exceed the Letter of Credit Sublimit.
Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the
Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or
25
that have been drawn upon and reimbursed. All Existing Letters of
Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed
by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit (other than the Existing Letters of
Credit or extensions or renewals thereof) would occur more than
twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain
the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which the L/C Issuer in good xxxxx xxxxx
material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated
amount less than $100,000, in the case of a commercial Letter of
Credit, or $50,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit (other than the Existing Letters of
Credit or extensions or renewals thereof) contains any provisions
for automatic reinstatement of the stated amount after any
drawing thereunder; or
(F) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C
26
Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the
L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit,
excluding, except with respect to the requirement under Section
2.03(ii)(B) that the expiry date of such Letter of Credit not
occur after the Letter of Credit Expiration Date, all Existing
Letters of Credit, if the L/C Issuer would not be permitted at
such time to issue such Letter of Credit in its amended form
under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation
at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of
Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent
in Article IX with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form
of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower. Such Letter of
Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 10:00 a.m. at least two
Business Days (or such other date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B)
the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the L/C Issuer may require.
Additionally, the Borrower shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information
pertaining to such
27
requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent
may require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the
Borrower and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative
Agent or the Borrower, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter
of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a
risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Applicable Percentage times the
amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit
must permit the L/C Issuer to prevent any such extension at least
once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Non-Extension
Notice Date") in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at
such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on
or before the day that is five Business Days before the Non-
Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Lender or the Borrower that
one or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing the
L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the
28
L/C Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent
thereof. Not later than 10:00 a.m. on the date of any payment by
the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount
of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Lender's Applicable Percentage thereof. In such event,
the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in
an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of
a Committed Loan Notice). Any notice given by the L/C Issuer or
the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for
the account of the L/C Issuer, in Dollars, at the Administrative
Agent's Office in an amount equal to its Applicable Percentage of
the Unreimbursed Amount not later than 12:00 p.m. on the Business
Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have
made a Base Rate Committed Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the
L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrower shall be deemed
to have incurred from the L/C Issuer an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under this
Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for
any amount drawn under any Letter
29
of Credit, interest in respect of such Lender's Applicable Percentage
of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower, any Subsidiary or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however, that
each Lender's obligation to make Committed Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section
4.02 (other than delivery by the Borrower of a Committed Loan
Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be
paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the
L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is
required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the
L/C Issuer in accordance with banking industry rules or interbank
compensation. A certificate of the L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent
manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent receives for
the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its
Applicable Percentage thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) and in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described
in Section 10.05 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Lender shall pay
to the Administrative Agent for the account of the L/C Issuer its
Applicable Percentage thereof on demand of
30
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any
time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of
Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including
any arising in connection with any proceeding under any Debtor
Relief Law;
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Borrower's
instructions or other irregularity, the Borrower will immediately
notify the L/C Issuer. The Borrower shall be conclusively deemed
to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as
to the validity or accuracy of any such document or the
31
authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any
of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any
Letter of Credit or Issuer Document. The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights
and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the
L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (iv) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter
of Credit. In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. (i) Upon the request of the Administrative
Agent, (A) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.
(ii) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes
of this Section 2.03, Section 2.05 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in
all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained
in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit
is issued (including any such agreement
32
applicable to an Existing Letter of Credit), (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance
with its Applicable Percentage, a Letter of Credit fee (the
"Letter of Credit Fee") for each Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn
under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance
with Section 1.05. Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change
in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any Event
of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable
to L/C Issuer. The Borrower shall pay directly to the L/C Issuer
for its own account, in Dollars, a fronting fee (i) with respect
to each commercial Letter of Credit, at the rate equal to 0.125%
of the amount of such Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a
commercial Letter of Credit increasing the amount of such Letter
of Credit, at a rate separately agreed between the Borrower and
the L/C Issuer, computed on the amount of such increase, and
payable upon the effectiveness of such amendment, and (iii) with
respect to each standby Letter of Credit, at the rate per annum
equal to 0.125%, computed on the daily amount available to be
drawn under such Letter of Credit on a quarterly basis in
arrears, and due and payable on the first Business Day after the
end of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.05. In
addition, the Borrower shall pay directly to the L/C Issuer for
its own account, the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges,
of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any
conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in
support of any obligations of, or is for the account of, a
Subsidiary, the Borrower shall be obligated to reimburse the L/C
Issuer hereunder for any and all drawings under such Letter of
Credit. The Borrower hereby acknowledges that the issuance of
33
Letters of Credit for the account of Subsidiaries inures to the
benefit of the Borrower, and that the Borrower's business derives
substantial benefits from the businesses of such Subsidiaries.
(m) Reporting of Letter of Credit Information. On (i) the last
Business Day of each calendar month, and (ii) each date that an
L/C Credit Extension occurs with respect to any Letter of Credit,
the L/C Issuer shall deliver to the Administrative Agent a report
in the form of Exhibit G hereto, appropriately completed with the
information for every Letter of Credit issued by the L/C Issuer
that is outstanding hereunder.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.04,
to make loans (each such loan, a "Swing Line Loan") to the
Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when
aggregated with the Applicable Percentage of the Outstanding
Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such
Lender's Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section
2.05, and reborrow under this Section 2.04. Each Swing Line Loan
shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in
an amount equal to the product of such Lender's Applicable
Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be
made upon the Borrower's irrevocable notice to the Swing Line
Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 10:00 a.m. on
the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice,
the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has
also received such Swing Line Loan Notice and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or
in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender)
prior to 11:00
34
a.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that one
or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 12:00 noon on
the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower
either (i) at its office by crediting the account of the Borrower
on the books of the Swing Line Lender in immediately available
funds, or (ii) by wire transfer to any third party for which the
Borrower has provided wiring instructions to the Swing Line
Lender not less than two Business Days prior to the related
borrowing date.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender's Applicable Percentage of the amount
of Swing Line Loans then outstanding. Such request shall be made
in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with
the requirements of Section 2.02, without regard to the minimum
and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section
4.02. The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Applicable Percentage of the
amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent's
Office not later than 10:00 a.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have
made a Base Rate Committed Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed Loans submitted
by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders
fund its risk participation in the relevant Swing Line Loan and
each Lender's payment to the Administrative Agent for the account
of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to
the date on which such payment
35
is immediately available to the Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking rules
on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender's obligation to make Committed Loans pursuant to this
Section 2.04(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing
Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Lender its Applicable
Percentage of such payment (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which
such Lender's risk participation was funded) in the same funds as
those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Applicable
Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line
Lender shall be responsible for invoicing the Borrower for
interest on the Swing Line Loans. Until each Lender funds its
Base Rate Committed Loan or risk participation pursuant to this
Section 2.04 to refinance such Lender's Applicable Percentage of
any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line
Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall
make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Lender.
36
2.05 Prepayments. (a) The Borrower may, upon notice from the
Borrower to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 10:00 a.m.
(A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans, and (B) on the date of prepayment of Base
Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans denominated in Dollars shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof;
and (iii) any prepayment of Base Rate Committed Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurodollar Loans are to be
prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's
Applicable Percentage of such prepayment. If such notice is
given by the Borrower, the applicable Borrower shall make such
prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment
of a Eurodollar Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment
shall be applied to the Committed Loans of the Lenders in
accordance with their respective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with
a copy to the Administrative Agent), at any time or from time to
time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent
not later than 10:00 a.m. on the date of the prepayment, and (ii)
any such prepayment shall be in a minimum principal amount of
$100,000. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein.
(c) If the Administrative Agent notifies the Borrower at any
time that the Total Outstandings at such time exceed the
Aggregate Commitments then in effect, then, within two Business
Days after receipt of such notice, the Borrower shall prepay
Loans and/or the Borrower shall Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after the prepayment in full of the Loans the
Total Outstandings exceed the Aggregate Commitments then in
effect.
2.06 Termination or Reduction of Commitments. The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the
Aggregate Commitments; provided that (i) any such notice shall be
received by the Administrative Agent not later than 10:00 a.m.
five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount
of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter
of Credit Sublimit or the Swing Line Sublimit exceeds the amount
of the Aggregate
37
Commitments, such Sublimit shall be automatically reduced
by the amount of such excess. The Administrative Agent will
promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans. (a) The Borrower shall repay to the
Lenders on the Maturity Date the aggregate principal amount of
Committed Loans made to the Borrower outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier
to occur of (i) the date ten Business Days after such Loan is
made and (ii) the Maturity Date.
2.08 Interest. (a) Subject to the provisions of subsection (b)
below, (i) each Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the Eurodollar Rate for such Interest
Period plus the Applicable Rate; (ii) each Base Rate Committed
Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; and (iii) each
Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per
annum equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid
when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by
the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted
by applicable Laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after
38
judgment, and before and after the commencement of any proceeding under
any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in subsections
(i) and (j) of Section 2.03:
(a) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its
Applicable Percentage, a facility fee equal to the Applicable
Rate times the actual daily amount of the Aggregate Commitments
(or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans, Swing Line Loans and
L/C Obligations), regardless of usage. The facility fee shall
accrue at all times during the Availability Period (and
thereafter so long as any Committed Loans, Swing Line Loans or
L/C Obligations remain outstanding), including at any time during
which one or more of the conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing
Date, and on the Maturity Date (and, if applicable, thereafter on
demand). The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arrangers and
the Administrative Agent for their own respective accounts fees
in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as
shall have been separately agreed upon in writing in the amounts
and at the times so specified. Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by
Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being
paid than if computed on the basis of a 365-day year). Interest
shall accrue on each Loan for the day on which the Loan is made,
and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any
Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 Evidence of Debt. (a) The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained
by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and
39
payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of
the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in
the absence of manifest error. Upon the request of any Lender to
a Borrower made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's
Loans to the Borrower in addition to such accounts or records.
Each Lender may attach schedules to a Note and endorse thereon
the date, Type (if applicable), amount and maturity of its Loans
and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest
error.
2.12 Payments Generally; Administrative Agent's Clawback. (a)
General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to
the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not
later than 11:00 a.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received
by the Administrative Agent after 11:00 a.m. shall in each case
be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative
Agent. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Committed
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Committed
Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with
Section 2.02 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable
Committed Borrowing or available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to
pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined in accordance with banking
industry rules on
40
interbank compensation and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable
to Base Rate Loans. If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower
for such period. If such Lender pays its share of the applicable
Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender's Committed Loan included in
such Committed Borrowing. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to the Administrative Agent for the account of the Lenders
or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders
or the L/C Issuer, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then
each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or the L/C
Issuer, in immediately available funds with interest thereon, for
each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate
determined in accordance with banking industry rules on interbank
compensation.
A notice of the Administrative Agent to any Lender or
Borrower with respect to any amount owing under this subsection
(b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender
makes available to the Administrative Agent funds for any Loan to
be made by such Lender to the Borrower, as provided in the
foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such
Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the
Lenders hereunder to make Committed Loans, to fund participations
in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Committed Loan, to fund any
such participation or to make any payment under Section 10.04(c)
on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender
to so make its Committed Loan, to purchase its participation or
to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate
any Lender to obtain the funds for any Loan in any particular
place or manner or to constitute a representation by any
41
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
2.13 Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any
of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it resulting in such
Lender's receiving payment of a proportion of the aggregate
amount of such Committed Loans or participations and accrued
interest thereon greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in
the Committed Loans and subparticipations in the L/C Obligations
and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued
interest on their respective Committed Loans and other amounts
owing them, provided that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise
thereto is recovered, such participations or subparticipations
shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by a Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Committed Loans or
subparticipations in L/C Obligations or Swing Line Loans to any
assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section
shall apply).
The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff
and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of the Borrower in the
amount of such participation.
2.14 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default and
the Borrower has made no voluntary reduction of the Aggregate
Commitments pursuant to Section 2.06, upon notice to the
Administrative Agent (which shall promptly notify the Lenders),
the Borrower may from time to time, request an increase in the
Aggregate Commitments by an amount (for all such requests) not
exceeding $50,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $10,000,000, and (ii)
the Borrower may make a maximum of three such requests. At the
time of sending such notice, the Borrower (in consultation with
the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of
such notice to the Lenders).
42
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it
agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding
within such time period shall be deemed to have declined to
increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders.
The Administrative Agent shall notify the Borrower and each
Lender of the Lenders' responses to each request made hereunder.
To achieve the full amount of a requested increase and subject to
the approval of the Administrative Agent and the L/C Issuers
(which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate
Commitments are increased in accordance with this Section, the
Administrative Agent and the Borrower shall determine the
effective date (the "Increase Effective Date") and the final
allocation of such increase. The Administrative Agent shall
promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer (i) certifying and attaching the resolutions
adopted by the Borrower approving or consenting to such increase,
and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in
Article V and the other Loan Documents are true and correct in
all material respects on and as of the Increase Effective Date,
except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are
true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 2.14, the
representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default exists. The
Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the
Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any
provisions in Sections 2.13 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any
other Loan Document shall be made free and
43
clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if the
Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting
the provisions of subsection (a) above, the Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent, each Lender and the L/C
Issuer, within 10 days after demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority; provided, that if the Borrower,
reasonably believes that such Taxes were not correctly or legally
asserted, the Administrative Agent or such Lender or the L/C
Issuer, as the case may be, will use reasonable efforts to
cooperate with the Borrower to obtain a refund of such Taxes so
long as such efforts would not, in the reasonable determination
of the Administrative Agent or such Lender or the L/C Issuer, as
the case may be, result in any additional costs, expenses or
risks or otherwise be disadvantageous to it. A certificate as to
the amount of such payment or liability delivered to a Borrower
by a Lender or the L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the law
of the jurisdiction in which a Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party,
with respect to payments hereunder or under any other Loan
Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will
44
enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, in the
event that a Borrower is resident for tax purposes in the United
States, any Foreign Lender shall deliver to Borrower and the
Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-
8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-
8ECI,
(iii) in the case of a Foreign Lender claiming the benefits
of the exemption for portfolio interest under section 881(c) of
the Code, (x) a certificate to the effect that such Foreign
Lender is not (A) a "bank" within the meaning of section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the
Borrower within the meaning of section 881(c)(3)(B) of the Code,
or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of
Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit
the Borrower to determine the withholding or deduction required
to be made.
Without limiting the obligations of the Lenders set forth
above regarding delivery of certain forms and documents to
establish each Lender's status for U.S. withholding tax purposes,
each Lender agrees promptly to deliver to the Administrative
Agent or the Borrower, as the Administrative Agent or the
Borrower shall reasonably request, on or prior to the Closing
Date, and in a timely fashion thereafter, such other documents
and forms required by any relevant taxing authorities under the
Laws of any other jurisdiction, duly executed and completed by
such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all
payments to be made to such Lender outside of the U.S. by the
Borrower pursuant to this Agreement or otherwise to establish
such Lender's status for withholding tax purposes in such other
jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would
modify or render invalid any such claimed exemption or
reduction, and (ii) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of applicable
Laws of any such jurisdiction that the Borrower make any
deduction or withholding for taxes from amounts payable to such
Lender. Additionally, each of the Borrower shall promptly
deliver to the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably request, on
or prior to the
45
Closing Date, and in a timely fashion thereafter,
such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and
completed by the Borrower, as are required to be furnished by
such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any
Lender of Taxes or Other Taxes, or otherwise in connection with
the Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent,
any Lender or the L/C Issuer determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and without
interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative Agent,
such Lender or the L/C Issuer, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event
the Administrative Agent, such Lender or the L/C Issuer is
required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any
other Person.
3.02 Illegality. If any Lender determines that any Law has made
it unlawful, or that any Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable Lending Office
to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits
of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans to convert Base Rate Committed Loans to
Eurodollar Rate Loans, shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, the Borrower shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or,
if applicable, convert all such Eurodollar Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or
converted.
3.03 Inability to Determine Rates. If the Required Lenders
determine that for any reason in connection with any request for
a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the
London offshore interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b)
adequate and reasonable means do not exist for determining the
46
Eurodollar Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for
any requested Interest Period with respect to a proposed
Eurodollar Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly so notify the Borrower and
each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into
a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) (i) impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except
any reserve requirement contemplated by Section 3.04(e));
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the L/C Issuer);
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting
this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any
Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the L/C Issuer hereunder (whether of
principal, interest or any other amount) then, upon request of
such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C
Issuer, as the case may be, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer
determines that any Change in Law affecting such Lender or the
L/C Issuer or any Lending Office of such Lender or such Lender's
or the L/C Issuer's holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of
return on such Lender's or the L/C Issuer's capital or on the
capital of such Lender's or the L/C Issuer's holding company, if
any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in
47
Letters of Credit held by, such Lender, or the Letters of Credit
issued by the L/C Issuer, to a level below that which such Lender
or the L/C Issuer or such Lender's or the L/C Issuer's holding
company could have achieved but for such Change in Law (taking
into consideration such Lender's or the L/C Issuer's policies and
the policies of such Lender's or the L/C Issuer's holding company
with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case
may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer or such Lender's or the L/C Issuer's
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender
or the L/C Issuer setting forth in reasonable detail the amount
necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and the manner of determining such
amount and delivered to the Borrower shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a
waiver of such Lender's or the L/C Issuer's right to demand such
compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that
such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or the L/C Issuer's intention
to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Additional Reserve Requirements. The Borrower shall pay to
each Lender, (i) as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional
interest on the unpaid principal amount of each Eurodollar Rate
Loan equal to the actual costs of such reserves allocated to such
Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days' prior
notice (with a copy to the Administrative Agent) of such
additional interest or costs from such Lender. If a Lender fails
to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest or costs shall be due and payable
10 days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Borrower
shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day
of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
48
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by the Borrower;
(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section 10.13;
including any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Borrower to
the Lenders under this Section 3.05, each Lender shall be deemed
to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded. Any demand for
compensation shall set forth in reasonable detail the amount and
method of determining the loss, cost or expenses claimed.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 3.04, or the Borrower is
required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender gives a notice pursuant to Section
3.02, then such Lender shall use reasonable efforts to designate
a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or
3.04, as the case may be, in the future, or eliminate the need
for the notice pursuant to Section 3.02, as applicable, and (ii)
in each case, would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 3.04, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.
3.07 Survival. All of the Borrower' obligations under this
Article III shall survive termination of the Aggregate
Commitments and repayment of all other Obligations hereunder.
49
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of
the L/C Issuer and each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or telecopies (followed promptly by
originals) unless otherwise specified, each properly executed by
a Responsible Officer, each dated the Closing Date (or, in the
case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender
and the Borrower;
(ii) Notes executed by the Borrower in favor of each Lender
requesting Notes;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers as the Administrative Agent may require evidencing the
identity, authority and capacity of such Responsible Officers in
connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative
Agent may reasonably require to evidence that the Borrower is
duly organized, is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(v) a favorable opinion of Shook, Hardy & Bacon, L.L.P., counsel
to the Borrower, addressed to the Administrative Agent and each
Lender, as to the matters set forth in Exhibit F-1 and such other
matters concerning the Borrower and the Loan Documents as the
Required Lenders may reasonably request;
(vi) a favorable opinion of Xxxxx Mulliss & Wicker, PLLC, counsel
to the Administrative Agent, addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit F-2
and such other matters concerning the Loan Documents as the
Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer either (A)
attaching copies of all consents, licenses and approvals required
in connection with the execution, delivery and performance by the
Borrower and the validity against the Borrower of the Loan
Documents, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents,
licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that attached thereto is a true and
correct copy of each of the Seaboard Overseas
50
Credit Facility, the 1993 Senior Note Agreements, 1995 Senior Note
Agreements and the 2002 Senior Note Agreements, (B) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, (C)
that there has been no event or circumstance since the date of
the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; and (D) a calculation of
the Consolidated Leverage Ratio as of October 2, 2004; and
(ix) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing
Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower
shall have paid all fees, charges and disbursements of counsel to
the Administrative Agent to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).
Without limiting the generality of the provisions of Section
9.04, for purposes of determining compliance with the conditions
specified in this Section 4.01, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (other than a
Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained
in Article V and each other Loan Document or in any document
furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be
deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension or the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer
or the Swing Line Lender shall have received a Request for Credit
Extension in accordance with the requirements hereof.
51
Each Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Committed Loans to
the other Type or a continuation of Eurodollar Rate Loans)
submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws.
The Borrower and each Subsidiary thereof (a) is duly organized or
formed, validly existing and in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental
licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a
party, (c) is duly qualified and is licensed and in good standing
under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires
such qualification or license, and (d) is in compliance with all
Laws; except in each case referred to in clause (a) (but only
with respect to Non-Material Subsidiaries), and clauses (b)(i),
(c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery
and performance by the Borrower of each Loan Document have been
duly authorized by all necessary corporate action, and do not and
will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach
or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such
Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law. The Borrower
and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent
that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, the Borrower
of this Agreement or any other Loan Document.
52
5.04 Binding Effect. This Agreement has been, and each other
Loan Document, when delivered hereunder, will have been, duly
executed and delivered by the Borrower. This Agreement
constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms, except as enforceability may be limited by Debtor Relief
Laws and subject to equitable remedies.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein;
(ii) fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries and Consolidated
Entities as of the date thereof and their results of operations
for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries and Consolidated
Entities as of the date thereof, including liabilities for taxes,
material commitments and indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and
its Subsidiaries and Consolidated Entities dated October 2, 2004,
and the related consolidated statements of earnings, shareholders
equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present in all material
respects the financial condition of the Borrower and its
Subsidiaries and Consolidated Entities as of the date thereof and
their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments. Schedule
5.05 sets forth all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its consolidated
Subsidiaries and Consolidated Entities on the Closing Date that
are not shown on such financial statements, including liabilities
for taxes, material commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, there
has been no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a
Material Adverse Effect.
5.06 Litigation. There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Borrower,
threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or
any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions
contemplated hereby, or (b) either individually or in the
aggregate could reasonably be expected to have a Material Adverse
Effect.
5.07 No Default. Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that
could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has
occurred and is
53
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.
5.08 Ownership of Property; Liens. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no
Liens, other than Liens permitted by Section 7.01.
5.09 Environmental Compliance. The Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect
of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental
Law on their respective businesses, operations and properties,
and as a result thereof the Borrower has reasonably concluded
that such Environmental Laws and claims could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.10 Insurance. The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable
insurance companies that are not Affiliates of the Borrower, in
such amounts (including self-insurance, if adequate reserves are
maintained with respect thereto), with such deductibles and
covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in
localities where the Borrower or the applicable Subsidiary
operates.
5.11 Taxes. The Borrower and its Subsidiaries have filed all
Federal, material state and other material tax returns and
reports required to be filed, and have paid all Federal, material
state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed
tax assessment against the Borrower or any Subsidiary that would,
if made, have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary thereof is party to any tax sharing agreement.
5.12 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 Laws. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently
being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower
and each ERISA Affiliate have made all required contributions to
each 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.
54
(b) There are no pending or, to the best knowledge of the
Borrower, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) the aggregate Unfunded Pension Liability of all
Pension Plans does not exceed $35,000,000; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. As of the Closing Date, the
Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13 (which Schedule indicates
those Subsidiaries that are Non-Material Subsidiaries), and all
of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and nonassessable and are
owned by the Borrower in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens. As of the Closing
Date, the Borrower has no Equity Interests (other than those
permitted by Section 7.02(a)) in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule
5.13, and has no control over any other entity except as
disclosed in Part (c) of Schedule 5.13.
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) The Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the
purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower,
or any Subsidiary (i) is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding Company Act of
1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 Disclosure. The Borrower has disclosed to the
Administrative Agent and the Lenders all agreements, instruments
and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected
(in light of the circumstances existing at each respective time
this representation is made) to result in a Material Adverse
Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on
behalf of the
55
Borrower to the Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any
other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material
misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that, (a) with respect to projected financial
information, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be
reasonable at the time and (b) with respect to general industry
information, the foregoing representation is only to the best of
the Borrower's knowledge.
5.16 Compliance with Laws. Each of the Borrower and each
Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual Property; Licenses, Etc. The Borrower and its
Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual
property rights (collectively, "IP Rights") that are reasonably
necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the
best knowledge of the Borrower, no slogan or other advertising
device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the
Borrower or any Subsidiary infringes upon any rights held by any
other Person. No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Borrower (or, if
earlier, 15 days after the date required to be filed with the SEC
(without giving effect to any extension permitted thereby)), a
consolidated balance sheet of the Borrower and its Subsidiaries
and Consolidated Entities as at the end of such fiscal year, and
the related consolidated statements of earnings, shareholders'
equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be
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audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going
concern" or like qualification or exception or any qualification
or exception as to the scope of such audit; and
(b) as soon as practicable, but in any event within 50 days
after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (commencing with the fiscal quarter
ended October 2, 2004) (or, if earlier, five days after the date
required to be filed with the SEC (without giving effect to any
extension permitted thereby)), a consolidated balance sheet of
the Borrower and its Subsidiaries and Consolidated Entities as at
the end of such fiscal quarter, and the related consolidated
statements of earnings and cash flows for such fiscal quarter and
for the portion of the Borrower's fiscal year then ended, setting
forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in
reasonable detail, certified by a Responsible Officer of the
Borrower as fairly presenting in all material respects the
financial condition, results of earnings and cash flows of the
Borrower and its Subsidiaries and Consolidated Entities in
accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant
to Section 6.02(c), the Borrower shall not be separately required
to furnish such information under clause (a) or (b) above, but
the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.
6.02 Certificates; Other Information. Deliver to the
Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required
Lenders:
(a) Not later than ten days after the delivery of the financial
statements referred to in Sections 6.01(a) and (b) (commencing
with the delivery of the financial statements for the fiscal year
ended December 31, 2004), a duly completed Compliance Certificate
signed by a Responsible Officer of the Borrower;
(b) with reasonable promptness after any request by the
Administrative Agent or any Lender, copies of any detailed audit
reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in
connection with the accounts or books of the Borrower or any
Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and
copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;
57
(d) promptly, after the same are available, copies of each
notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other
inquiry by such agency regarding financial or other operational
results of the Borrower or any Subsidiary thereof; and
(e) with reasonable promptness, such additional information
regarding the business, financial or corporate affairs of the
Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may
from time to time reasonably request.
Documents required to be delivered pursuant to Section
6.01(a) or (b) or Section 6.02(c) (to the extent any such
documents are included in materials otherwise filed with the SEC)
may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the
Borrower's website on the Internet at the website address listed
on Schedule 10.02; or (ii) on which such documents are posted on
the Borrower's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored
by the Administrative Agent); provided that: (i) the Borrower
shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to
deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or
such Lender and (ii) the Borrower shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper
copies of the Compliance Certificates required by Section 6.02(a)
to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such
documents.
The Borrower hereby acknowledges that (a) the Administrative
Agent and/or the Arrangers will make available to the Lenders and
the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or
another similar electronic system (the "Platform") and (b)
certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities)
(each, a "Public Lender"). The Borrower hereby agrees that (w)
all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked "PUBLIC" which,
at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (x) by marking Borrower
Materials "PUBLIC", the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers, the L/C
Issuer and the Lenders to treat the Borrower Materials as either
publicly available information or not material information
(although it may be sensitive and proprietary) with respect to
the Borrower or its securities for purposes of United States
Federal and state securities laws; (y) all Borrower Materials
marked
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"PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor"; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat
the Borrower Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not
designated "Public Investor".
6.03 Notices. Notify the Administrative Agent and each Lender:
(a) immediately, and in any event within three (3) days upon
becoming aware of the occurrence of any Default;
(b) promptly, of any matter (including (i) breach or non-
performance of, or any default under, a Contractual Obligation of
the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or
any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation
or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws) that has resulted
or could reasonably be expected to result in a Material Adverse
Effect;
(c) immediately, and in any event within three (3) days, upon
becoming aware of the occurrence of any ERISA Event; and
(d) promptly, of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by
a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating
what action the Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with
GAAP are being maintained by the Borrower or such Subsidiary; (b)
all lawful claims which, if unpaid, would by law become a Lien
upon its property, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing or relating
to such Indebtedness, except, in the case of clauses (a), (b) and
(c), to the extent that any such obligations or liabilities,
individually or in the aggregate, are not reasonably likely to
result in a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05, and
except (but only with respect to Non-Material Subsidiaries) where
the failure to do so could not reasonably be expected to have a
Material Adverse Effect; (b) take all reasonable action to
maintain all rights,
59
privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names
and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and
protect all of its material properties and equipment necessary in
the operation of its business in good working order and
condition, ordinary wear, tear and obsolescence excepted; (b)
make all necessary repairs thereto and renewals and replacements
thereof (provided that the Borrower and its Subsidiaries may
discontinue the operation and maintenance of any of its
properties if such discontinuance is desirable in the conduct of
its business) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c)
use the standard of care typical in the industry in the operation
and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain with financially sound
and reputable insurance companies that are not Affiliates of the
Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against
by Persons engaged in the same or similar business, of such types
and in such amounts (including self-insurance, if adequate
reserves are maintained with respect thereto) as are customarily
carried under similar circumstances by such other Persons.
6.08 Compliance with Laws. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good
faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity
with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain
such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary, as
the case may be.
6.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit
and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public
accountants, at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that (a) so
long as no Event of Default exists, such inspection shall be
limited to once per fiscal year of the Borrower and shall be at
the expense of the Lender(s) requesting such inspection and (b)
when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without
advance notice.
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6.11 Use of Proceeds. Use the proceeds of the Credit Extensions
for general corporate purposes not in contravention of any Law or
of any Loan Document.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly:
7.01 Negative Pledge. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
7.01 (including but not limited to Liens securing Indebtedness of
Seaboard Overseas contemplated under the Seaboard Overseas Credit
Facility) and Liens securing renewals, extensions and
refinancings of the Indebtedness secured by liens listed on
Schedule 7.01; provided that (i) the property covered thereby is
not changed, (ii) (except with respect to the Seaboard Overseas
Credit Agreement) the amount secured or benefited thereby is not
increased, (iii) any contingent obligor with respect thereto is
not changed and (iv) in the event that the primary obligor with
respect thereto is changed, title to the property financed with
such Indebtedness is transferred substantially simultaneously to
such new primary obligor;
(c) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by
ERISA;
(f) deposits to secure the performance of bids, trade contracts
and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are
not substantial in amount, and which do not in any case
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materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business
of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) or
securing appeal or other surety bonds related to such judgments;
(i) Liens securing Indebtedness (including renewals, extensions
and refinancings thereof) in respect of capital leases, Synthetic
Lease Obligations and purchase money obligations for fixed or
capital assets; provided in each case, that (i) such Liens do not
at any time encumber any property other than the property
financed by such Indebtedness, (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever
is lower, of the property being acquired on the date of
acquisition and (iii) if the Indebtedness secured thereby is
owing to any Subsidiary, the property being financed thereby has
not been previously owned by the Borrower or any Subsidiary; and
(j) Liens securing Indebtedness (including renewals, extensions
and refinancings thereof) on property in existence at the time
such property is acquired by the Borrower or a Subsidiary in
connection with an Acquisition not prohibited herein; provided,
that such Liens do not at any time encumber any property other
than the property so acquired;
(k) Liens under UCC 4-210 and Liens in deposit accounts
created under the standard deposit agreement of any financial
institution at which the Borrower or any Subsidiary maintains a
deposit account;
(l) Liens on property owned by a Subsidiary, provided that such
Liens secure only obligations owing to the Borrower or a wholly-
owned Subsidiary;
(m) Liens securing Indebtedness permitted under Section 7.03(e);
provided that the fair market value of the assets subject to any
such Lien shall not exceed by more than two hundred percent, as
of the date of incurrence, the principal amount of the
Indebtedness so secured; and
(n) Liens not otherwise permitted by this Section 7.01;
provided, that the aggregate amount of Indebtedness secured by
Liens permitted by this clause (n) shall not at any time, when
added to all other Priority Indebtedness, exceed 10% of
Consolidated Tangible Net Worth determined at such time.
In the case any property shall be subjected to a Lien in
violation of this Section 7.01, the Borrower shall forthwith make
or cause to be made to the fullest extent permitted by applicable
law, provision whereby the Obligations will be secured equally
and ratably with all other obligations secured by such Lien
pursuant to such agreements and instruments as shall be
reasonably approved by the Administrative Agent, and the Borrower
shall cause to be delivered to the Administrative Agent and each
Lender an opinion of independent counsel reasonably satisfactory
to the Administrative Agent to the effect that such agreements
and instruments are enforceable in accordance with their terms,
and in any such case the Obligations shall have the benefit, to
the fullest extent that, and with such priority as, the holders
of the Obligations may be entitled under applicable law, of an
equitable Lien on such property (and the proceeds thereof)
62
securing the Obligations. Such violation of this Section 7.01
will constitute an Event of Default hereunder, whether or not any
such provision is made pursuant to this Section 7.01.
7.02 Investments. Make or hold any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the
form of cash equivalents or readily marketable debt or equity
securities;
(b) (i) Loans to officers, directors and employees of the
Borrower or any Subsidiary that would not be prohibited by the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated thereunder, provided that the aggregate amount of all
such loans outstanding at any time shall not exceed $5,000,000
and (ii) advances to any member of the Xxxxxx Group or to any
officer, director or employee of the Borrower or any
Subsidiary, provided such advances are for travel, entertainment,
relocation and analogous ordinary course business purposes
provided that the aggregate amount of all such advances at any
time outstanding shall not exceed $500,000;
(c) Investments of the Borrower in any Subsidiary and
Investments of any Subsidiary in the Borrower or in another
Subsidiary;
(d) Investments of the Borrower and Subsidiaries existing on the
Closing Date, as set forth on Schedule 5.13;
(e) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant
of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
(f) Guarantees permitted by Section 7.03; provided, however,
that neither the Borrower nor any Subsidiary shall Guarantee any
Indebtedness incurred pursuant to Section 7.03(e) except that
Seaboard Overseas may Guarantee any such Indebtedness incurred by
any of its Subsidiaries and each Subsidiary of Seaboard Overseas
may Guarantee any such Indebtedness incurred by Seaboard Overseas
(provided, in either case, that any such Subsidiary is in
existence on the Closing Date) ;
(g) Investments incurred in order to consummate Acquisitions
permitted hereby;
(h) Investments in "seller take-back" notes arising in
connection with a Disposition of assets permitted hereby;
provided that the principal amount of any such "seller take-back"
note does not exceed the fair market value of the assets so
Disposed; and
(i) other Investments not permitted by this Section 7.02;
provided, that, (i) the aggregate value of all such Investments
made in any fiscal year shall not exceed $25,000,000 unless both
immediately before and immediately after making such Investment
the Consolidated Adjusted Leverage Ratio is less than 3.00 to
1.00, and (ii) to the extent that any such Investment would cause
the aggregate value of all such Investments made (which are still
outstanding or owed) in any fiscal year to exceed $25,000,000,
the Borrower shall have furnished to the Administrative Agent a
certificate of a Responsible Officer, which certificate shall
calculate the
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Consolidated Adjusted Leverage Ratio both immediately before and
immediately after making such Investment.
7.03 Subsidiary Indebtedness. Permit any Subsidiary to create,
incur, assume or suffer to exist, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness
other than:
(a) Indebtedness listed on Schedule 7.03 (including renewals,
extensions and refinancings thereof );
(b) Indebtedness under the Seaboard Overseas Credit Facility
(including any renewals, increases, extensions and refinancings
thereof);
(c) Indebtedness (including renewals, extensions and
refinancings thereof so long as the principal amount thereof is
not increased) in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital
assets within the limitations set forth in clause (i) of Section
7.01;
(d) Swap Contracts entered into (i) to hedge interest rate
and/or currency risk with respect to Indebtedness incurred in the
ordinary course of business and pursuant to prudent and
reasonable business practices that are consistent with the
business practices of other companies similarly situated, (ii) to
hedge currency risk with respect to any such payments expected to
be received or made pursuant to a contract entered into in the
ordinary course of business and pursuant to prudent and
reasonable business practices that are consistent with the
business practices of other companies similarly situated or (iii)
to hedge commodity risk with respect to any commodity held,
required to be delivered or anticipated to be received in the
ordinary course of business and pursuant to prudent and
reasonable business practices that are consistent with the
business practices of other companies similarly situated;
(e) Indebtedness (including renewals, extensions and
refinancings thereof), in an aggregate principal amount not to
exceed $100,000,000 (but excluding for this purpose any
Indebtedness incurred under the Seaboard Overseas Facility)
incurred by a non-domestic Subsidiary, the proceeds of which are
paid as a dividend to the Borrower, or to a Subsidiary which in
turn dividends such proceeds to the Borrower pursuant to Section
965 of the Internal Revenue Code as amended by the American Jobs
Creation Act of 2004, and which proceeds will be invested in a
domestic reinvestment plan pursuant to the terms of said Section
965 and the regulations promulgated thereunder;
(f) Indebtedness of a Subsidiary owing to the Borrower or a
Subsidiary; provided such indebtedness has a tenor of less than
365 days; and
(g) Indebtedness (including renewals, extensions and
refinancings thereof so long as the principal amount thereof is
not increased) not otherwise permitted under this Section 7.03;
provided, that the aggregate amount of Indebtedness permitted by
this clause (g) shall not at any time, when added together with
all Indebtedness outstanding pursuant to clause (c) above and all
other Priority Indebtedness, exceed 10% of Consolidated Tangible
Net Worth determined at such time.
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7.04 Fundamental Changes. Merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any Person, except that, so long as
no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided
that the Borrower shall be the continuing or surviving Person, or
(ii) any one or more other Subsidiaries, provided that when any
wholly-owned Subsidiary is merging with another Subsidiary, the
wholly-owned Subsidiary shall be the continuing or surviving
Person;
(b) any Subsidiary may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to the
Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary,
then the transferee must either be the Borrower or a wholly-owned
Subsidiary; and
(c) a merger by the Borrower or a Subsidiary with a Person to
consummate an Acquisition permitted by Section 7.11.
7.05 Dispositions. Make any Disposition or enter into any
agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of
business;
(c) Dispositions of equipment or real property to the extent
that (i) such property is exchanged for credit against the
purchase price of similar replacement property or (ii) the Net
Cash Proceeds of such Disposition are reasonably promptly applied
to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower
or to any wholly-owned Subsidiary;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrower or a Subsidiary that satisfy
each of the following conditions and which shall not be deemed to
be a Disposition under this clause (f) until all of the following
conditions have been satisfied:
(i) the Borrower shall have delivered a written notice to the
Administrative Agent contemporaneously with the consummation of
the Disposition in which the Borrower:
(A) identifies the property that is the subject of the
Disposition,
(B) states the nature and terms of the transaction and the
nature and use of the proceeds of the transaction, and
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(C) states that, within three hundred and sixty-five (365) days
following the consummation of such Disposition, the entire
proceeds of such Disposition (or portion thereof which has not
been allocated by the Borrower to clause (g) below), net of
reasonable and ordinary transaction costs and expenses incurred
in connection with such Disposition and any Indebtedness required
by its terms to be repaid in connection with such Disposition,
shall be applied to the acquisition by the Borrower or any
Subsidiary of operating assets or Equity Interests of a Person
which will become a Subsidiary and which owns operating assets
and which operating assets will be used in the ordinary course of
business of the Borrower and its Subsidiaries, and
(ii) the proceeds of such Disposition shall have been applied as
described in such written notice;
(g) Dispositions by the Borrower and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i) at
the time of such Disposition, no Default shall exist or would
result from such Disposition and (ii) the aggregate book value of
all property Disposed of in reliance on this clause (g) shall not
exceed 25% of Consolidated Tangible Net Worth as of the Closing
Date;
provided, however, that any Disposition pursuant to clauses (a)
through (g) shall be for fair market value.
7.06 Restricted Payments. Declare or make, directly or
indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that, so long as no
Default shall have occurred and be continuing at the time of any
action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Persons
that own an Equity Interest in such Subsidiary, ratably according
to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the
common stock or other common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or
otherwise acquire Equity Interests issued by it with the proceeds
received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests; and
(d) the Borrower may declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire for cash
Equity Interests issued by it; provided, that, (i) the aggregate
amount of all such dividends, purchases, redemptions and
acquisitions shall not exceed $15,000,000 in any given fiscal
year of the Borrower unless both immediately before and
immediately after making such payment the Consolidated Adjusted
Leverage Ratio is less than 2.50 to 1.00, and (ii) to the extent
any such dividend, purchase, redemption or acquisition would
cause the aggregate amount of all such Restricted Payments in any
fiscal year to exceed $15,000,000, the Borrower shall have
furnished to the Administrative Agent a certificate of a
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Responsible Officer, which certificate shall calculate the
Consolidated Adjusted Leverage Ratio both immediately before and
immediately after making such dividend, purchase, redemption or
and acquisition, as the case may be.
7.07 Change in Nature of Business. Engage in any material line
of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof
or any business substantially related or incidental thereto. In
furtherance of the foregoing, the Borrower shall at all times
cause, (i) the amount of revenues of the Borrower and its
Subsidiaries derived from Permitted Lines of Business to be at
least sixty-six and two-thirds percent (66-2/3%) of the amount of
all revenues of the Borrower and its Subsidiaries, determined in
each case for the then most recently ended period of twelve (12)
fiscal months on a consolidated basis, or (ii) the net book value
of assets of the Borrower and its Subsidiaries used in Permitted
Lines of Business to be at least sixty-six and two-thirds percent
(66-2/3%) of the amount of the net book value of all assets of
the Borrower and its Subsidiaries, in each case determined as of
the end of then most recently ended calendar month on a
consolidated basis.
7.08 Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or
such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate; provided that this Section
7.08 shall not prohibit the Borrower or any Subsidiary from
entering into or consummating any transaction contemplated by any
of the Permitted Affiliate Transactions (as defined in the Senior
Note Agreements).
7.09 Burdensome Agreements. Be a party to or enter into any
Contractual Obligation (including for this purpose, its
organizational documents) other than this Agreement, any other
Loan Document, the Senior Note Agreements or the Seaboard
Overseas Credit Facility (and refinancings or renewals thereof,
on the same or substantially similar terms)) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the
Borrower or to otherwise transfer property to the Borrower, (ii)
of any Subsidiary to Guarantee the Indebtedness of the Borrower
or (iii) of the Borrower or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any
negative pledge incurred or provided in favor of any holder of
Indebtedness in respect of a capital lease, Synthetic Lease
Obligation or purchase money obligation for fixed or capital
assets solely to the extent any such negative pledge relates to
the property financed by or the subject of such Indebtedness; or
(b) requires the grant of a Lien to secure an obligation of such
Person if a Lien is granted to secure another obligation of such
Person.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such
purpose.
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7.11 Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or
take any action to solicit the tender of securities or proxies in
respect thereof in order to effect any Acquisition, unless (i) no
Default or Event of Default shall have occurred and be continuing
either immediately prior to or immediately after giving effect to
such Acquisition and, if the Cost of Acquisition is in excess of
$50,000,000, the Borrower shall have furnished to the
Administrative Agent (A) pro forma historical financial
statements as of the end of the most recently completed fiscal
year of the Borrower and most recent interim fiscal quarter, if
applicable giving effect to such Acquisition and (B) a Compliance
Certificate prepared on a historical pro forma basis as of the
most recent date for which financial statements have been
furnished pursuant to Section 6.01(a) or (b) (or if no such
financial statements have been furnished, from the date of the
financial statements referred to in Section 5.05(b)) giving
effect to such Acquisition, which certificate shall demonstrate
that no Default or Event of Default would exist immediately after
giving effect thereto, (ii) the Person acquired shall be a
Subsidiary, or be merged into the Borrower or a Subsidiary,
immediately upon consummation of the Acquisition (or if assets
are being acquired, the acquiror shall be the Borrower or a
Subsidiary), and (iii) after giving effect to such Acquisition,
the aggregate Costs of Acquisition incurred in any fiscal year of
the Borrower shall not exceed $50,000,000 (on a noncumulative
basis, with the effect that amounts not incurred in any fiscal
year may not be carried forward to a subsequent period) unless,
both immediately before and immediately after making such
Acquisition, the Consolidated Adjusted Leverage Ratio is less
than 3.00 to 1.00.
7.12 Financial Covenants.
(a) Consolidated Tangible Net Worth. Permit Consolidated
Tangible Net Worth at any time to be less than the sum of (i)
$507,000,000, and (ii) an amount equal to 25% of the Consolidated
Net Income earned in each full fiscal quarter ending after
October 2, 2004 (with no deduction for a net loss in any such
fiscal quarter).
(b) Debt to Capitalization. Permit Consolidated Funded
Indebtedness at any time to be greater than 50% of Consolidated
Total Capitalization.
(c) Consolidated Adjusted Leverage Ratio. Permit the
Consolidated Adjusted Leverage Ratio at any time to be greater
than 3.50 to 1.00.
7.13 Amendments to Senior Note Agreements and Seaboard Overseas
Credit Facility.
Enter into or suffer to exist any amendment or modification
(a) to the amortization schedule or prepayment provisions
(excluding the waiver of any prepayment premium or penalty) of
the Indebtedness created under the Senior Note Agreements or the
Seaboard Overseas Credit Facility or (b) to any other terms or
conditions contained in the Senior Note Agreements or the
Seaboard Overseas Credit Facility if such modification (i) would
conflict with or be more restrictive than the terms or provisions
of this Agreement, (ii) would provide for collateral security for
such Indebtedness in excess of that provided under such
agreements as of the Closing Date, (iii) would expand any
negative pledge provision provided for therein, (iv) would alter
any provision of the events of default under those agreements,
(v) further limits, in any manner, Seaboard Overseas' ability to
make Restricted Payments, or (vi) would alter the
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advance rates used in the definition of "Borrowing Base" under
the Seaboard Overseas Credit Facility.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan
or any L/C Obligation, or (ii) within five days after the same
becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due hereunder, or (iii) within five days after the
same becomes due, any other amount payable hereunder or under any
other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of
Sections 6.03, 6.10, or 6.11 or Article VII; or
(c) Other Defaults. The Borrower fails to perform or observe
any other covenant or agreement (not specified in subsection (a)
or (b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 10 days, in
the case of any failure under Sections 6.01 or 6.02, or 30 days,
in the case of any failure under other such covenant or
agreement, after the Borrower has knowledge thereof; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made
by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material
respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise, but
giving effect to any applicable grace or cure period) in respect
of (1) the Seaboard Overseas Credit Facility, (2) the Senior
Notes or (3) any other Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than
$10,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or
Guarantee (including but not limited to the Seaboard Overseas
Credit Facility and the Senior Notes) or contained in any
instrument or agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of which default or other
event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its
stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of
default under such Swap
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Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than $10,000,000; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its
Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment
for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for
60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and
continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property
of any such Person and is not released, vacated or fully bonded
within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) a final, non-appealable judgment or order for the
payment of money in an aggregate amount exceeding $50,000,000 (to
the extent coverage by any applicable independent third-party
insurer has been denied), or (ii) any one or more non-monetary
final, non-appealable judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings
are commenced by any creditor upon such judgment or order; or (B)
there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV
of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of $10,000,000, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the $10,000,000; or
(j) Invalidity of Loan Documents. Any provision of any Loan
Document, at any time after its execution and delivery and for
any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full
force and effect; or the Borrower or any other Person contests in
any manner the validity or enforceability of any provision of any
Loan Document; or the Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any provision of any Loan Document;
or
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(k) Change of Control. There occurs any Change of Control.
8.02 Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount
thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan
Documents;
provided, however, that upon the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, the obligation of
each Lender to make Loans and any obligation of the L/C Issuer to
make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Borrower to Cash Collateralize
the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative
Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies
provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer (including fees and time
charges for attorneys who may be employees of any Lender or the
L/C Issuer) and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second
payable to them;
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Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans, L/C
Borrowings and other Obligations, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described
in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings,
ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the
L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit;
and
Last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Borrower or as otherwise
required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to
clause Fifth above shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall
be applied to the other Obligations, if any, in the order set
forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C
Issuer hereby irrevocably appoints Bank of America to act on its
behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the
L/C Issuer, and the Borrower shall not have rights as a third
party beneficiary of any of such provisions.
9.02 Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent
and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder
in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any
kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the
Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:
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(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights
and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise
as directed in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided
that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary
to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to
any of the Borrower or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action
taken or not taken by it (i) with the consent or at the request
of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or
the L/C Issuer.
The Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v)
the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person.
The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by
the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder
to the making of a Loan, or the issuance of a Letter of Credit,
that by its terms must be fulfilled to the satisfaction of a
Lender or the L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender
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or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C
Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one
or more sub agents appointed by the Administrative Agent. The
Administrative Agent and any such sub agent may perform any and
all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub agent and
to the Related Parties of the Administrative Agent and any such
sub agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent; L/C Issuer. Each of
the Administrative Agent and the L/C Issuer may at any time give
notice of its resignation to the Lenders, any other L/C Issuer
and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in
consultation with the Borrower so long as no Default exists, to
appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders
that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative
Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for
above in this Section. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable
by the Borrower to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring
Administrative Agent's resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring
Administrative Agent, its sub agents and their respective Related
Parties
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in respect of any actions taken or omitted to be taken by
any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent
pursuant to this Section shall also constitute its resignation as
L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of Bank of America as a
retiring L/C Issuer and Swing Line Lender, (b) Bank of America
shall be discharged from all its duties and obligations hereunder
or under the other Loan Documents as L/C Issuer and Swing Line
Lender, and (c) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other
arrangement satisfactory to Bank of America to effectively assume
the obligations of the Bank of America as L/C Issuer with respect
to the Letters of Credit issued by it.
In the event of any dismissal or resignation by any other
L/C Issuer, any Letters of Credit issued by such retiring L/C
Issuer shall remain outstanding until termination pursuant to
their terms and such retiring L/C Issuer shall retain all the
rights and obligations of an L/C Issuer hereunder with respect to
all such Letters of Credit and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)), but excluding the right to
consent to Eligible Assignees and the obligation to issue new
Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the L/C Issuer acknowledges that it has,
independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication
Agent or Documentation Agent listed on the cover page hereof
shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or
a L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of
any Loan or L/C Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective
of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender and the L/C Issuer
to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to
pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09 and
10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting
the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower therefrom, shall be
effective unless in writing signed by the Required Lenders and
the Borrower, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent
shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each
Lender directly affected thereby;
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(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (v)
of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of
"Default Rate" or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce
the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without
the written consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of
each Lender; or
and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition
to the Lenders required above, affect the rights or duties of the
L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed
by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under
this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or
duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) Section 10.06(h) may not be amended,
waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC
at the time of such amendment, waiver or other modification; and
(v) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and
except as provided in subsection (b) below), all notices and
other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopier as follows,
and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such
Person on Schedule 10.02; and
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(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given
when received; notices sent by telecopier shall be deemed to have
been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been
given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications
to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications
to the Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e mail and
Internet or intranet websites) pursuant to procedures approved by
the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender or the L/C Issuer pursuant to
Article II if such Lender or the L/C Issuer, as applicable, has
notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication.
The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by
it, provided that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall
be deemed received upon the sender's receipt of an
acknowledgement from the intended recipient (such as by the
"return receipt requested" function, as available, return e-mail
or other written acknowledgement), provided that if such notice
or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next
business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and
identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender
may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders.
The Administrative Agent, the L/C Issuer and the Lenders shall be
entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) believed in
good faith to have been given by or on behalf of the Borrower
even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent,
the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and
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liabilities resulting from the reliance by such Person on each
notice ) believed in good faith to have been given by or on behalf
of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any
Lender, the L/C Issuer or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents
(which in the case of administration shall be expenses which are
consistent with practices and activities that are generally
accepted and customary for administrative agents in the
syndicated loan market) or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred
by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out of pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), and
shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the L/C
Issuer, in connection with the enforcement or protection of its
rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued
hereunder, including all such out of pocket expenses incurred
during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower arising out of,
in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of
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Credit or the use or proposed use of the proceeds therefrom (including
any refusal by the L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower, and
regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted
from such Indemnitee's gross negligence, willful misconduct or
breach in bad faith of such Indemnitee's obligations hereunder or
under any other Loan Document.
(c) Reimbursement by Lenders. To the extent that the Borrower
for any reason fails to indefeasibly pay any amount required
under subsection (a) or (b) of this Section to be paid by it to
the Administrative Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may
be, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-
agent) or the L/C Issuer in its capacity as such, or against any
Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of
Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall assert, and
hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of,
in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Loan or
Letter of Credit or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable
for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through
telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby,
except in the event of gross negligence, willful misconduct or
breach in bad faith by such Indemnitee of this Agreement or any
other Loan Document, as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(e) Payments. All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the
replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all
the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by
or on behalf of the Borrower is made to the Administrative Agent,
the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, the L/C
Issuer or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the
applicable Federal Funds Rate from time to time in effect. The
obligations of the Lenders and the L/C Issuer under clause (b) of
the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of
pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign
to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); provided that
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(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender or
an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply
to rights in respect of Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee);
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be
treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance
with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the
Administrative Agent's Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of
the names and addresses of
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the Lenders, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall
be available for inspection by each of the Borrower and the
L/C Issuer at any reasonable time and from time to time upon
reasonable prior notice. In addition, at any time that a request
for a consent for a material or substantive change to the Loan
Documents is pending, any Lender wishing to consult with other
Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any financial institution (other
than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or
the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and
the L/C Issuer shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification
described in clauses (c) or (d) of the first proviso to Section
10.01 that affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) Limitation upon Participant Rights. A Participant shall not
be entitled to receive any greater payment under Section 3.01 or
3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such
Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent.
In addition and without limitation of the foregoing sentence, a
Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) and Section 3.06 as
though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights
under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or
assignment to secure obligations to a
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Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic
Transactions Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything
to the contrary contained herein, any Lender (a "Granting
Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Committed Loan that
such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Committed
Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan,
the Granting Lender shall be obligated to make such Committed
Loan pursuant to the terms hereof or, if it fails to do so, to
make such payment to the Administrative Agent as is required
under Section 2.12(b)(ii). Each party hereto hereby agrees that
(i) neither the grant to any SPC nor the exercise by any SPC of
such option shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no
SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other
modification of any provision of any Loan Document, remain the
lender of record hereunder. The making of a Committed Loan by an
SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Committed Loan were made by
such Granting Lender. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the
United States or any State thereof. Notwithstanding anything to
the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of the Borrower and the Administrative
Agent and with the payment of a processing fee of $3,500, assign
all or any portion of its right to receive payment with respect
to any Committed Loan to the Granting Lender and (ii) disclose on
a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper
dealer or provider of any surety or Guarantee or credit or
liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained
herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of
America
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may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to
the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however,
that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America
resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all
Letters of Credit issued by it and outstanding as of the
effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in outstanding Swing
Line Loans pursuant to Section 2.04(c).
10.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer
agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or
derivative transaction relating to a Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than
as a result of a breach of this Section or (y) becomes available
to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.
For purposes of this Section, "Information" means all
information received from the Borrower or any Subsidiary relating
to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to
the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received
from the Borrower or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord
to its own confidential information.
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10.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender, the L/C Issuer and each
of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer
shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such
Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of
the Loans or, if it exceeds such unpaid principal, refunded to
the Borrower. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating
to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations
and warranties have been or will be relied
86
upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default at
the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.
10.12 Severability. If any provision of this Agreement or
the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of
the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
10.13 Replacement of Lenders. If any Lender requests
compensation under Section 3.04, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender, then the Borrower may,
at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that
shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and L/C Advances,
accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim
for compensation under Section 3.04 or payments required to be
made pursuant to Section 3.01, such assignment will result in a
reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment
or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
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10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH
OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR
88
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
10.16 USA PATRIOT Act Notice. Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information
includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with
the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
SEABOARD CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxx
Name: Xxxx Xxx
Title: Assistan Vice President
S-2
BANK OF AMERICA, N.A., as a Lender,
a L/C Issuer and Swing Line Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
X-0
XXX XXXX XX XXXX XXXXXX
ATLANTA AGENCY
By: /s/ X. Xxxx
Name: X. Xxxx
Title: Senior Manager
S-4
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
S-5
THE BANK OF NEW YORK
By: /s/ Xxxx X'Xxxxxx
Name: Xxxx X'Xxxxxx
Title: Vice President
S-6
SUNTRUST BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
S-7
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ Xxxxx X. Kenwood
Name: Xxxxx X. Kenwood
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
S-8
U.S. AGBANK, FCB, AS DISCLOSED
AGENT
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
S-9
