EXHIBIT 10.3
FIVE YEAR CREDIT AGREEMENT
Dated as of April 18, 0000
XXXXXXX XXXXX XXXXXXX INC., a Maryland corporation (the
"Company"), the Significant Subsidiaries of the Company listed on the signature
pages hereof (the Company and each such Significant Subsidiary, an "Initial
Borrower" and collectively, the "Initial Borrowers"), the banks, financial
institutions and other institutional lenders (the "Initial Lenders") listed on
the signature pages hereof, WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication
agent, XXXXXXX XXXXX XXXXXX INC. and FIRST UNION SECURITIES, INC, as joint lead
arrangers and joint bookrunners, and CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurodollar Rate Advances, as of any date, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
------------------------------------------------------------
Public Debt Rating Applicable Margin for
S&P/Xxxxx'x Eurodollar Rate Advances
------------------------------------------------------------
Level 1
A or A2 or above 0.200%
------------------------------------------------------------
Level 2
A- or A3 0.425%
------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.500%
------------------------------------------------------------
Level 4
BBB or Baa2 0.725%
------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.800%
------------------------------------------------------------
Xxxxx 0
Xxxx xxxx Xxxxx 0 1.000%
------------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
--------------------------------------------------------------
Level 1
A or A2 or above 0.075%
--------------------------------------------------------------
Level 2
A- or A3 0.100%
--------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.125%
--------------------------------------------------------------
Level 4
BBB or Baa2 0.150%
--------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.200%
--------------------------------------------------------------
Xxxxx 0
Xxxx xxxx Xxxxx 0 0.250%
--------------------------------------------------------------
"Applicable Utilization Fee" means, as of any date that the
aggregate Advances exceed 25% of the aggregate Commitments, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
--------------------------------------------------------------
Level 1
A or A2 or above 0.075%
--------------------------------------------------------------
Level 2
A- or A3 0.100%
--------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.125%
--------------------------------------------------------------
Level 4
BBB or Baa2 0.125%
--------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.250%
--------------------------------------------------------------
Xxxxx 0
Xxxx xxxx Xxxxx 0 0.250%
--------------------------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
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"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1%
or, if there is no nearest 1/4 of 1%, to the next higher 1/4
of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained
by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrower" means each Initial Borrower and each Designated
Subsidiary that shall become a party to this Agreement pursuant to
Section 9.08.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, or (b) if
such Lender has entered into any Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
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"Competitive Bid Note" means a promissory note of a Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means confidential or proprietary
information that any Borrower furnishes to the Agent or any Lender, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Agent or
such Lender from a source other than any Borrower that, to the
knowledge of the Agent or such Lender, is subject to a confidentiality
arrangement with such Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (e) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (f) all
Synthetic Lease Liabilities of such Person, (g) all Invested Amounts,
(h) all Debt of others referred to in clauses (a) through (f) above or
clause (i) below guaranteed by such Person, or in effect guaranteed by
such Person and (j) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt, which Debt, in the case of this clause
(h) shall be deemed not to exceed the fair market value of such
encumbered property.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any Subsidiary designated after
the date of this Agreement for borrowing privileges hereunder pursuant
to Section 9.08.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Agent, in substantially the
form of Exhibit E hereto, pursuant to which such Designated Subsidiary
shall become a Borrower hereunder in accordance with Section 9.08.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense net of interest income, (b) income tax
expense, (c) depreciation expense, (d) depletion expense and (e)
amortization expense, in each case determined in accordance with GAAP
for such period.
"Effective Date" has the meaning specified in Section 3.01.
4
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, the Company,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Borrower nor an Affiliate of any Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Company or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Company or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment
5
and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Telerate
Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
If the Telerate Markets Page 3750 (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
6
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity future or
option contracts and other similar agreements.
"Information Memorandum" means the information memorandum
dated January 29, 2002 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the applicable Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two, three or
six months, as the applicable Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) a Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Invested Amounts" means the amounts invested by investors
that are not Affiliates of the Borrowers in connection with a
receivables securitization program and paid to the Company or any of
its Subsidiaries, as reduced by the aggregate amounts received by such
investors from the payment of receivables and applied to reduce such
invested amounts.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Dow Xxxxx Markets
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days
7
prior to the first day of such Interest Period for a term comparable to
such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars offered by the principal office
of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks' respective
ratable shares of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. If the Dow Xxxxx Markets Telerate Page 3750
(or any successor page) is unavailable, the LIBO Rate for any Interest
Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance bearing
interest based on the LIBO Rate.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), results of
operations, performance, properties or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), results of
operations, performance, properties or prospects of the Company and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent
or any Lender under this Agreement or any Note or (c) the ability of
any Borrower to perform its obligations under this Agreement or any
Note.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and at least one Person
other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
8
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced unless being contested in good faith and for
which appropriate reserves are being maintained: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(b) hereof; (b) Liens imposed by
law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a
period of more than 60 days; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights of
way and other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Company. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee will be set in accordance with Level
6 under the definition of "Applicable Margin", "Applicable Percentage"
or "Applicable Utilization Fee", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating, except that if
the lower of such ratings is more than one level below the higher of
such ratings, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the level that is one
level above the lower rating; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Wachovia Bank, National
Association and Bank One, NA.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means (a) at any time prior to an
acceleration of the Advances pursuant to Section 6.01, Lenders owed at
least a majority in interest of the then aggregate unpaid principal
amount of the Revolving Credit Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments or (b) at any time after an
acceleration of the Advances pursuant to Section 6.01, Lenders owed at
least a majority in interest of the then aggregate unpaid principal
amount of the Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in
interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
9
"Revolving Credit Note" means a promissory note of the
Borrowers payable to the order of any Lender, delivered pursuant to a
request made under Section 2.16 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrowers to
such Lender resulting from the Revolving Credit Advances made by such
Lender.
"Significant Subsidiary" means any Subsidiary of the Company
or group of Subsidiaries of the Company which, in either case, holds or
owns total assets with a book value in excess of $50,000,000 or has
annual revenues in excess of $50,000,000.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and no Person other
than the Company and the ERISA Affiliates or (b) was so maintained and
in respect of which the Company or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Synthetic Lease Liabilities" of a Person means any liability
under any tax retention operating lease or so-called "synthetic" lease
transaction, or any obligations arising with respect to any other
similar transaction which the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
Consolidated balance sheets of such Person and its Subsidiaries (other
than leases which do not have an attributable interest component that
are not leases that have been, or should be, in accordance with GAAP,
recorded as capital leases).
"Termination Date" means the earlier of April 18, 2007 and the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
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SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrowers from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding such Lender's Commitment
provided that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount of the
Competitive Bid Advances then outstanding and such deemed use of the aggregate
amount of the Commitments shall be allocated among the Lenders ratably according
to their respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrowers may borrow under this Section 2.01, prepay pursuant to Section 2.10
and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the applicable
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Revolving Credit
Borrowing make available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Credit Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the applicable Borrower at the Agent's
address referred to in Section 9.02. Each Borrower hereby authorizes the Company
to deliver each Notice of Borrowing on behalf of such Borrower.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) a Borrower may not select Eurodollar Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than six separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the applicable Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurodollar Rate Advances, the Borrowers shall jointly and
severally indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for such Revolving Credit
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Revolving Credit Borrowing when such Revolving Credit
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and the
Borrowers severally agree to repay (and all the Borrowers jointly and severally
agree to repay) to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the applicable Borrower until the date such amount is repaid to the
11
Agent, at (i) in the case of the Borrowers, the interest rate applicable at the
time to Revolving Credit Advances comprising such Revolving Credit Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrowers may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) The Company may request on behalf of one or more
Borrowers a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially
the form of Exhibit B-2 hereto, specifying therein the requested (v)
date of such proposed Competitive Bid Borrowing, (w) aggregate amount
of such proposed Competitive Bid Borrowing, (x) in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest
Period, or in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances, maturity date for repayment of each Fixed Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring 30 days after
the date of such Competitive Bid Borrowing or later than the
Termination Date), (y) interest payment date or dates relating thereto,
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 10:00 A.M. (New York City time) (A) at least
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Company shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Company shall instead
specify in the Notice of Competitive Bid Borrowing that the Advances
comprising such Competitive Bid Borrowing shall be LIBO Rate Advances.
Each Notice of Competitive Bid Borrowing shall be irrevocable and
binding on the Borrowers. The Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from the Company by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrowers as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in
its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Company), (A) before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and (B) before 10:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts of such proposed Competitive
Bid may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Company of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent, by the other Lenders. If any
Lender shall elect
12
not to make such an offer, such Lender shall so notify the Agent before
10:00 A.M. (New York City time), and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) The Company shall, in turn, (A) before 10:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and (B) before 11:00 A.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Agent notice to that effect, or
(y) accept for itself or on behalf of one or
more Borrowers one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of
each Competitive Bid Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the Company by the Agent on
behalf of such Lender for such Competitive Bid Advance
pursuant to paragraph (ii) above) to be made by each Lender as
part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent notice to that effect. The Company
shall accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest
rates of interest offered by such Lenders. If two or more
Lenders have offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among such
Lenders in proportion to the amount that each such Lender
offered at such interest rate.
(iv) If the Company notifies the Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Agent shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Company accepts for itself or on behalf of one
or more Borrowers one or more of the offers made by any Lender or
Lenders pursuant to paragraph (iii)(y) above, the Agent shall in turn
promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by
the Company, (B) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 11:00 A.M. (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and promptly after
receipt by the Agent of such funds, the Agent will make such funds
available to the Borrowers at the location specified by the Company in
its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
13
(vi) If the Company notifies the Agent that it accepts for
itself or on behalf of one or more Borrowers one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
such notice of acceptance shall be irrevocable and binding on the
Borrowers. The Borrowers shall jointly and severally indemnify each
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Competitive Bid Borrowing, the
Borrowers shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrowers may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrowers jointly and severally agree to repay to
the Agent for the account of each Lender that has made a Competitive Bid
Advance, on the maturity date of each Competitive Bid Advance (such maturity
date being that specified by the Company for repayment of such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrowers shall have no right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by the
Company for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the
Competitive Bid Note evidencing such Competitive Bid Advance.
(e) The Borrowers jointly and severally agree to pay
interest on the unpaid principal amount of each Competitive Bid Advance from the
date of such Competitive Bid Advance to the date the principal amount of such
Competitive Bid Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the Lender making such Competitive Bid
Advance in its notice with respect thereto delivered pursuant to subsection
(a)(ii) above, payable on the interest payment date or dates specified by the
Company for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
Competitive Bid Note evidencing such Competitive Bid Advance. Upon the
occurrence and during the continuance of an Event of Default, the Borrowers
jointly and severally agree to pay interest on the amount of unpaid principal of
and interest on each Competitive Bid Advance owing to a Lender, payable in
arrears on the date or dates interest is payable thereon, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Competitive Bid Advance under the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrowers resulting from each
Competitive Bid Advance made to any Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers
jointly and severally agree to pay to the Agent for the account of each Lender a
facility fee on the aggregate amount of such Lender's Commitment from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2002, and on the Termination Date.
14
(b) Agent's Fees. The Borrowers jointly and severally
agree to pay to the Agent for its own account such fees as may from time to time
be agreed between the Company and the Agent.
SECTION 2.05. Optional Termination or Reduction of the
Commitments. The Company shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce ratably
in part the unused portions of the respective Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and provided
further that the aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount that is less than the aggregate principal amount of the
Competitive Bid Advances then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrowers jointly and severally agree to repay to the Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrowers jointly and severally agree to pay interest on
the unpaid principal amount of each Revolving Credit Advance owing to each
Lender from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum equal
at all times to the sum of (x) the Base Rate in effect from time to
time plus (y) the Applicable Margin in effect from time to time plus
(z) the Applicable Utilization Fee in effect from time to time, payable
in arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time plus (z) the Applicable Utilization Fee in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrowers jointly and severally agree to
pay interest on (i) the unpaid principal amount of each Revolving Credit Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Revolving Credit Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest
15
Period, the Agent shall forthwith so notify the Company and the Lenders,
whereupon (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Lenders to make, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the applicable Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in Section
1.01, the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Company and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, be prepaid by the Borrowers or, at the
applicable Borrower's option, be automatically Converted into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. Any Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances made to it of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
provided, however, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
applicable Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. The
applicable Borrower may, upon notice at least three Business Days' prior to the
date of such prepayment, in the case of Eurodollar Rate Advances, and not later
than 11:00 A.M. (New York City time) on the date of such prepayment, in the case
of Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrowers
jointly and severally agree to, prepay the outstanding principal amount of the
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Revolving Credit Advances comprising part of the same Revolving Credit Borrowing
in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Borrowers shall be obligated,
jointly and severally, to reimburse the Lenders in respect thereof pursuant to
Section 9.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrowers shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrowers and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrowers shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrowers and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrowers
shall make each payment hereunder not later than 11:00 A.M. (New York City time)
on the day when due to the Agent at the Agent's Account in same day funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
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(b) The Borrowers hereby authorize each Lender, if and to
the extent payment owed to such Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all of
the Borrowers' accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, all computations of interest based on the Eurodollar Rate, the LIBO
Rate or the Federal Funds Rate or in respect of Fixed Rate Advances and of
facility fees shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or facility fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility fee,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the applicable Borrower shall
make such deductions and (iii) the applicable Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrowers shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrowers shall jointly and severally indemnify
each Lender and the Agent for and hold it harmless against the full amount of
Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
by any jurisdiction on amounts payable under this Section 2.14) imposed on or
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
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(d) Within 30 days after the date of any payment of
Taxes, the applicable Borrower shall furnish to the Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender and on the
date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter as requested in writing by the Company (but only so long as such
Lender remains lawfully able to do so), shall provide each of the Agent and the
Company with two original Internal Revenue Service forms W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Company and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Company with the appropriate form described in Section
2.14(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under subsection (e) above), such
Lender shall not be entitled to indemnification under Section 2.14(a) or (c)
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrowers shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of
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any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrowers in the amount of such
participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrowers to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrowers agree that upon
notice by any Lender to the Borrowers (with a copy of such notice to the Agent)
to the effect that a Revolving Credit Note is required or appropriate in order
for such Lender to evidence (whether for purposes of pledge, enforcement or
otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, the Borrowers shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender hereunder and (iv) the amount of
any sum received by the Agent from each Borrower hereunder and each Lender's
share thereof.
(c) Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrowers to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Agent or such Lender to make
an entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrowers under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrowers agree that they shall use such proceeds)
solely for general corporate purposes of the Borrowers.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change
since December 31, 2001.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no adverse change in the status, or financial effect on
the Company or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
20
(c) Nothing shall have come to the attention of the
Lenders during the course of their due diligence investigation to lead
them reasonably to believe that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect;
without limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records, books of
account, contracts and properties of the Company and its Subsidiaries
as they shall have reasonably requested.
(d) All governmental and third party consents and
approvals necessary in connection with the transactions contemplated
hereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lenders) and shall
remain in effect, and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated
hereby.
(e) The Initial Borrowers shall have notified each Lender
and the Agent in writing as to the proposed Effective Date.
(f) The Initial Borrowers shall have paid all accrued
fees and expenses of the Agent and the Lenders (including the accrued
fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall
be true and the Agent shall have received for the account of each
Lender a certificate signed by a duly authorized officer of each
Initial Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Effective Date,
and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) Certified copies of the resolutions of the
Board of Directors of each Initial Borrower approving this
Agreement and the Notes, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of each Initial Borrower certifying the
names and true signatures of the officers of such Borrower
authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) A favorable opinion of Xxxxxxx Xxxxx,
Assistant General Counsel for the Company, substantially in
the form of Exhibit D hereto and as to such other matters as
any Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have terminated the commitments,
and paid in full all Debt, interest, fees and other amounts
outstanding, under the Credit Agreement dated as of March 5, 2001, as
amended, among the Company, the lenders parties thereto and Citibank,
as agent, and under the Credit Agreement dated as of December 8, 1998,
as amended, among the Company, the lenders parties thereto and The
First
21
National Bank of Chicago, as administrative agent, and each of the
Lenders that is a party to such credit facility hereby waives, upon
execution of this Agreement, any notice required by said Credit
Agreements relating to the termination of commitments thereunder.
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an initial
Revolving Credit Advance to each Designated Subsidiary following its designation
as a Borrower hereunder pursuant to Section 9.08 on the occasion of the initial
Borrowing thereby is subject to the Agent's receipt on or before the date of
such initial Borrowing of each of the following, in form and substance
satisfactory to the Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary,
in substantially the form of Exhibit E hereto.
(b) A Revolving Credit Note of such Designated Subsidiary
to the extent requested by any Lender pursuant to Section 2.16.
(c) A certificate of the Secretary or an Assistant
Secretary (or person performing similar functions) of such Designated
Subsidiary certifying (A) appropriate resolutions of the board of
directors (or persons performing similar functions) of such Designated
Subsidiary approving this Agreement and its Notes, and all documents
evidencing other necessary corporate (or equivalent) action and
governmental approvals, if any, with respect to this Agreement and its
Notes (copies of which shall be attached thereto), and (B) the names
and true signatures of the officers of such Designated Subsidiary
authorized to sign the Designation Letter of such Designated Subsidiary
and its Notes and the other documents to be delivered by such
Designated Subsidiary hereunder.
(d) A favorable opinion of counsel for such Designated
Subsidiary reasonably acceptable to the Agent, in substantially the
form of Exhibit D hereto with modifications appropriate to such
Designated Subsidiary, and addressing such other matters as any Lender
through the Agent may reasonably request.
(e) Such other documents, opinions and other information
as any Lender, through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the applicable Borrower of the proceeds of such Revolving
Credit Borrowing shall constitute a representation and warranty by such Borrower
that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in the last sentence
of subsection (e) thereof and in subsection (f)(i) thereof) are correct
on and as of such date, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent
22
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
applicable Borrower of the proceeds of such Competitive Bid Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrowers that has been
provided to the Agent and each Lender by the Borrowers in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender 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 the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the
Borrowers, by notice to the Lenders, designate as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the state of
its organization.
(b) The execution, delivery and performance by such
Borrower of this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) such Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting such Borrower.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery and performance by such Borrower of this Agreement or the
Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by such Borrower. This Agreement is, and each of
23
the Notes when delivered hereunder will be, the legal, valid and
binding obligation of such Borrower enforceable against such Borrower
in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Xxxxxx
Xxxxxxxx LLP, independent public accountants, copies of which have been
furnished to each Lender, fairly present the Consolidated financial
condition of the Company and its Subsidiaries as at such date and the
Consolidated results of the operations of the Company and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2001, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect (other
than the Disclosed Litigation) or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby, and there has
been no adverse change in the status, or financial effect on the
Company or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) hereto.
(g) No information, exhibit or report furnished by the
Company or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statements
contained therein not misleading.
(h) Each Borrower and its Subsidiaries are in compliance
with Regulations T, U and X. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrowers
and their Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
(i) Neither any Borrower nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a
Material Adverse Effect. Neither any Borrower nor any of its
Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect.
(j) The Borrowers and their Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct
of their respective businesses or the ownership of their respective
property, except for any failure to comply with any of the foregoing
which could not reasonably be expected to have a Material Adverse
Effect.
(k) On the date of this Agreement, the Borrowers and
their Subsidiaries have good title, free of all Liens other than those
permitted by Section 5.02(a) to all of the property and assets
reflected in the Company's most recent consolidated financial
statements provided to the Agent as owned by the Borrowers and their
Subsidiaries.
(l) Each Borrower and each of its Subsidiaries owns or
possesses all material patents, trademarks, trade names, service marks,
copyright, licenses and rights with respect to the foregoing necessary
for the future conduct of its business, without any known material
conflict with the rights of others.
24
(m) In the ordinary course of its business, the officers
of the Company consider the effect of Environmental Laws on the
business of the Borrowers, in the course of which they identify and
evaluate potential risks and liabilities accruing to the Borrowers and
their Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has concluded that Environmental laws cannot
reasonably be expected to have a Material Adverse Effect. Except as
disclosed on Schedule 3.01(b) hereto, neither any Borrower nor any of
its Subsidiaries has received any notice to the effect that its
operations are not in material compliance with any of the requirements
of applicable Environmental Laws or are the subject of any foreign or
domestic, federal, state or local investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance
or remedial action could reasonably be expected to have a Material
Adverse Effect.
(n) Neither any Borrower nor any of its Subsidiaries is
an "investment company" or a company "controlled" by and "investment
company" or an "affiliated person" thereof or an "affiliated person" of
such affiliated person, in each case within the meaning of the
Investment Company Act of 1940, as amended.
(o) Neither any Borrower nor any of its Subsidiaries 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, as amended.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, each
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws, which, if violated, could reasonably be expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges
or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither such Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that such Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) and provided further that neither such Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of such Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of such Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to such Borrower, such Subsidiary or the Lenders.
25
(e) Visitation Rights. At any reasonable time and from
time to time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
such Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of such Borrower and each such Subsidiary in
accordance with generally accepted accounting principles in effect from
time to time.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve,
all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Transactions with Affiliates. Conduct, and cause each
of its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to such Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
(i) Conduct of Business. Carry on and conduct its
business, and cause each of its Subsidiaries to carry on and conduct
its business, in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted or lines of
business reasonably related thereto.
(j) Reporting Requirements. The Company shall furnish to
the Lenders:
(i) as soon as available and in any event within
45 days after the end of each of the first three quarters of
each fiscal year of the Company, the Consolidated balance
sheet of the Company and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash
flows of the Company and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to
year-end audit adjustments) by the chief financial officer of
the Company as having been prepared in accordance with
generally accepted accounting principles and certificates of
the chief financial officer of the Company as to compliance
with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of
any change in GAAP used in the preparation of such financial
statements, the Company shall also provide, if necessary for
the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of the Company, a
copy of the annual audit report for such year for the Company
and its Subsidiaries, containing the Consolidated balance
sheet of the Company and its Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and
cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion acceptable to the
Required Lenders by Xxxxxx Xxxxxxxx LLP or other independent
public accountants acceptable to the Required Lenders,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Company shall
also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer of the Company setting forth details of such Default
and the action that the Borrowers have taken and propose to
take with respect thereto;
26
(iv) promptly after the sending or filing
thereof, copies of all reports that any Borrower sends to any
of its securityholders, and copies of all reports and
registration statements that any Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Company or any
of its Subsidiaries of the type described in Section 4.01(f);
(vi) not later than August 31 of each year,
notice of all Significant Subsidiaries of the Company
determined by reference to the Company's financial position as
of December 31 of the immediately preceding calendar year; and
(vii) such other information respecting the
Company or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.
Reports and financial statements required to be delivered by Company
pursuant to clauses (i), (ii) and (iv) of this subsection (j) shall be
deemed to have been delivered on the date on which the Company posts
such reports, or reports containing such financial statements, on its
website on the Internet at xxx.xxxxxxx-xx.xxx, at xxx.xxx.xxx or at
such other website identified by the Company in a notice to the Agent
and the Lenders and that is accessible by the Lenders without charge;
provided that the Company shall deliver paper copies of such
information to any Lender promptly upon request of such Lender through
the Agent and provided further that the Lenders shall be deemed to have
received the information specified in clauses (i), (ii) and (iv) of
this subsection (j) on the date (x) such information is posted at the
website of the Agent identified from time to time by the Agent to the
Lenders and the Company and (y) such posting is notified to the Lenders
(it being understood that the Company shall have satisfied the timing
obligations imposed by those clauses as of the date such information is
delivered to the Agent).
(k) Additional Borrowers. Not later than 30 days after
the delivery of the notice required to be delivered pursuant to Section
5.01(j)(vi), designate each Significant Subsidiary that is organized
under the laws of a jurisdiction in the United States and is not prior
to such date a Borrower under this Agreement to become a Designated
Subsidiary in accordance with Section 9.08; provided that Sierra Bay
Receivables, Inc., a Nevada corporation, shall not be required to
become a Borrower under this Agreement.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, no Borrower
will:
(a) Liens, Etc. Create or suffer to exist, or permit any
of its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any assets
acquired or held by such Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of
such assets or to secure Debt incurred solely for the purpose
of financing the acquisition of such assets, or Liens existing
on such assets at the time of its acquisition (other than any
such Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such assets)
or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any assets of any
character other than the assets being acquired, and no such
extension, renewal or replacement shall extend to or cover any
assets not theretofore subject to the Lien being extended,
renewed or replaced,
27
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at
the time such Person is merged into or consolidated with such
Borrower or any Subsidiary of such Borrower or becomes a
Subsidiary of such Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with such
Borrower or such Subsidiary or acquired by such Borrower or
such Subsidiary,
(v) Liens on cash and cash equivalents securing
obligations under Hedge Agreements, provided that the
aggregate amount of cash and cash equivalents subject to such
Liens shall not exceed $5,000,000 at any time outstanding,
(vi) without duplication of clause (ii) above,
Liens, if any, arising in connection with receivables
securitization programs, in any aggregate principal amount not
to exceed $300,000,000 at any time outstanding (for purposes
of this clause (vi), the "principal amount" of a receivables
securitization program shall mean the amounts invested by
investors that are not Affiliates of the Company in connection
with a receivables securitization program and paid to the
Company or any of its Subsidiaries, as reduced by the
aggregate amounts received by such investors from the payment
of receivables and applied to reduce such invested amounts),
(vii) other Liens securing Debt in an aggregate
principal amount not to exceed $50,000,000 at any time
outstanding, and
(viii) the replacement, extension or renewal of any
Lien permitted by clause (ii), (iii) or (iv) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise 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, any Person, or
permit any of its Subsidiaries to do so, except that any Subsidiary of
the Company may merge or consolidate with or into, or dispose of assets
to, any other Subsidiary of the Company, and except that any Subsidiary
of the Company may merge into or dispose of assets to the Company,
provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(c) Subsidiary Debt. The Company shall not permit any of
its Subsidiaries to incur or at any time be liable with respect to any
Debt or to issue or have outstanding any preferred stock, except:
(i) Debt under this Agreement or any Notes;
(ii) Debt or preferred stock outstanding on the
date hereof,
(iii) Debt or preferred stock of a Subsidiary
issued to and held by the Company or a wholly-owned Subsidiary
of the Company,
(iv) Debt or preferred stock of any corporation
existing at the time such corporation becomes a Subsidiary of
the Company and not created in contemplation of such event,
(v) Invested Amounts not to exceed $250,000,000
at any time outstanding,
28
(vi) refinancing, extension, renewal or refunding
of any Debt or preferred stock permitted by the foregoing
clauses (ii) though (iv), and
(vii) OTHER Debt or preferred stock in addition to
that set forth in clauses (ii) through (vi) if, after giving
effect thereto, theAN aggregate outstanding principal amount
of Debt of all Subsidiaries of the Company pursuant to this
clause (vi) does not TO exceed $250,000,000 at any time
outstanding.
(d) Hedge Agreements. Enter into, or permit any of its
Subsidiaries to enter into, any Hedge Agreements other than Hedge
Agreements pursuant to which such Borrower or any Subsidiary has hedged
its reasonably estimated interest rate, foreign currency or commodity
exposure.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt
to Consolidated Debt plus shareholders' equity of not greater than 0.50
: 1.00:
(b) Fixed Charge Coverage Ratio. Maintain, as of the last
day of each fiscal quarter, a ratio of Consolidated EBITDA of the
Company and its Subsidiaries for the period of four fiscal quarters
then ended to interest payable on, and amortization of debt discount in
respect of, all Debt during such period by the Company and its
Subsidiaries of not less than 3.0 : 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or any Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower
herein or by any Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material
respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e), (h) or
(j), 5.02 or 5.03 on its part to be performed or observed, or (ii) any
Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to such Borrower by the
Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $15,000,000
in the aggregate (but excluding Debt outstanding hereunder) of such
Borrower or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or
29
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Company or any of its Significant Subsidiaries
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Company or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Company or any of its Significant
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in
excess of $15,000,000 in the aggregate shall be rendered against any
Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(g) Lafarge S.A. shall own directly or indirectly 50% or
less of the outstanding shares of Voting Stock of the Company on a
fully diluted basis; or the Company shall own directly or indirectly
50% or less of the outstanding shares of Voting Stock of any Borrower
on a fully diluted basis; or
(h) The Company or any of its ERISA Affiliates shall
incur, or shall be reasonably likely to incur liability as a result of
one or more of the following that, individually or in the aggregate,
could reasonably be likely to have a Material Adverse Effect: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Company or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE VII
JOINT AND SEVERAL OBLIGATIONS
SECTION 7.01. Obligations Joint and Several. (a) Each Borrower
hereby absolutely, unconditionally and irrevocably agrees that all obligations
of any Borrower hereunder, now or hereafter existing
30
under or in respect of this Agreement and the Notes (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (all such
obligations, the "Obligations"), shall be joint and several obligations of all
the Borrowers, and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Agent or any Lender in
enforcing any rights under this Agreement or any Note. Without limiting the
generality of the foregoing, each Borrower's liability shall extend to all
amounts that constitute part of the Obligations and would be owed by any other
Borrower to the Agent or any Lender under or in respect of this Agreement or the
Notes but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving such
other Borrower.
(b) Each Borrower, and by its acceptance of this
Agreement, the Agent and each Lender, hereby confirms that it is the intention
of all such Persons that this Article VII and the Obligations of each Borrower
hereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law
to the extent applicable to this Article VII and the Obligations of each
Borrower hereunder. To effectuate the foregoing intention, the Agent, the
Lenders and the Borrowers hereby irrevocably agree that the Obligations of each
Borrower under this Article VII at any time shall be limited to the maximum
amount as will result in the Obligations of such Borrower under this Article VII
not constituting a fraudulent transfer or conveyance. For purposes hereof,
"Bankruptcy Law" means any proceeding of the type referred to in Section 6.01(e)
of this Agreement or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
(c) Each Borrower hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Lender
under this Agreement or any Note, such Borrower will contribute, to the maximum
extent permitted by law, such amounts to each other Borrower so as to maximize
the aggregate amount paid to the Lenders under or in respect of this Agreement
and the Notes.
SECTION 7.02. Joint and Several Nature of Obligations
Absolute. Each Borrower agrees that this Article VII will be observed strictly
in accordance with its terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of the terms of this
Article VII or the rights of any Lender with respect thereto. The Obligations of
each Borrower under or in respect of this Agreement are independent of the
Obligations of any other Borrower under or in respect of this Agreement or the
Notes, and a separate action or actions may be brought and prosecuted against
each Borrower to enforce this Agreement, irrespective of whether any action is
brought against any other Borrower or whether any other Borrower is joined in
any such action or actions. The liability of each Borrower under this Article
VII shall be irrevocable, absolute and unconditional irrespective of, and each
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
defenses it may now have or hereafter acquire in any way relating to, any or all
of the following:
(a) any lack of validity or enforceability of this
Agreement or any Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations or any other
obligations of any Borrower under or in respect of this Agreement or the Notes,
or any other amendment or waiver of or any consent to departure from this
Agreement or any Note, including, without limitation, any increase in the
Obligations resulting from the extension of additional credit to any Borrower or
any of its Subsidiaries or otherwise;
(c) any change, restructuring or termination of the
corporate structure or existence of any Borrower or any of its Subsidiaries;
(d) any failure of any Lender to disclose to any Borrower
any information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Borrower now or
hereafter known to such Lender (each Borrower waiving any duty on the part of
the Lenders to disclose such information);
31
(e) the failure of any other Person to execute or deliver
this Agreement, any Credit Agreement Supplement (as hereinafter defined) or any
other guaranty or agreement or the release or reduction of liability of any
Borrower with respect to the Obligations; or
(f) any other circumstance (including, without
limitation, any statute of limitations) or any existence of or reliance on any
representation by any Lender that might otherwise constitute a defense available
to, or a discharge of, any Borrower.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Borrower
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Obligations and this Article VII and any requirement that any Lender
exhaust any right or take any action against any other Borrower or any other
Person.
(b) Each Borrower hereby unconditionally and irrevocably
waives any right to revoke this Article VII and acknowledges that this Article
VII is continuing in nature and applies to all Obligations, whether existing now
or in the future.
(c) Each Borrower hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Lender that in any manner impairs, reduces, releases
of otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Borrower or other rights of such
Borrower to proceed against any of the other Borrowers or any other Person and
(ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of such Borrower hereunder.
(d) Each Borrower hereby unconditionally and irrevocably
waives any duty on the part of any Lender to disclose to such Borrower any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower now or hereafter known by such Lender.
(e) Each Borrower acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by this Agreement and the Notes and that the waivers set forth in
this Article VII are knowingly made in contemplation of such benefits. Each
Borrower further acknowledges that it has, independently and without reliance
upon any Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement, including the provisions of this Article VII, and the Notes to which
it is or is to be a party, and such Borrower has established adequate means of
obtaining from each other Borrower on a continuing basis information pertaining
to, and is now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Borrower.
SECTION 7.04. Subrogation. Each Borrower hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against any other Borrower that arise from the
existence, payment, performance or enforcement of such Borrower's Obligations
under or in respect of this Agreement or the Notes, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Lender against any other Borrower, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any other Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this Agreement and
the Notes shall have been paid in full and the Commitments shall have expired or
been terminated. If any amount shall be paid to any Borrower in violation of the
immediately preceding sentence at any time prior to the later of (a) the payment
in full
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in cash of all the Obligations and all other amounts payable under this
Agreement and the Notes and (b) the Termination Date, such amount shall be
received and held in trust for the benefit of the Lenders, shall be segregated
from other property and funds of such Borrower and shall forthwith be paid or
delivered to the Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Obligations and all
other amounts payable under this Agreement and the Notes, whether matured or
unmatured, in accordance with the terms of this Agreement. If (i) any Borrower
shall make payment to any Lender of all or any part of the Obligations, (ii) all
of the Obligations and all other amounts payable under this Agreement and the
Notes shall have been paid in full in cash and (iii) the Termination Date shall
have occurred, the Lenders will, at such Borrower's request and expense, execute
and deliver to such Borrower appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Borrower of an interest in the Obligations resulting from such payment made
by such Borrower pursuant to this Agreement.
SECTION 7.05. Continuing Obligations. Without prejudice to the
survival of any of the other agreements of any Borrower under this Agreement or
any Note, the agreements and obligations of each Borrower contained in Section
7.01 (with respect to enforcement expenses), the last sentence of Section 7.02
and this Section 7.05 shall survive the payment in full of the Obligations and
all of the other amounts payable under this Agreement and the Notes.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.07; (ii) may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Borrower
or to inspect the property (including the books and records) of any Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other
33
Lender and may exercise the same as though it were not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Borrower, any Subsidiary of any Borrower and any Person who may do
business with or own securities of any Borrower or any such Subsidiary, all as
if Citibank were not the Agent and without any duty to account therefor to the
Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrowers), ratably according to
the respective principal amounts of the Revolving Credit Advances then owed to
each of them (or if no Revolving Credit Advances are at the time outstanding,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement (collectively, the
"Indemnified Costs"), provided that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Agent is not reimbursed for such expenses
by the Borrowers. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 8.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrowers and may
be removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges
that neither the documentation agent nor any other Lender designated as any
"Agent" on the signature pages hereof has any liability hereunder other than in
its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
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SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce or subordinate the principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Revolving Credit Advances that shall be required for the Lenders
or any of them to take any action hereunder or (f) amend this Section 9.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied or delivered, if to any Borrower, c/o the
Company at its address at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Treasurer; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at Xxx Xxxxx Xxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to any Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrowers and the Agent. All such notices and communications shall, when
mailed or telecopied, be effective when deposited in the mails or telecopied,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.08 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Initial Borrower (other
than the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B) in
the case of clause (ii) of the immediately preceding sentence, the delivery of
any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree
jointly and severally to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrowers further agree jointly and
severally to pay on demand all costs
35
and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) The Borrowers agree jointly and severally to
indemnify and hold harmless the Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Company or any of its
Subsidiaries or any Environmental Action relating in any way to the Company or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. Each
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, LIBO Rate Advance is made by any Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or
(e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a Lender other than
on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07 as a result
of a demand by any Borrower pursuant to Section 9.07(a), such Borrower shall,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) The Borrowers acknowledge that the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution. All
notices, financial statements, financial and other reports, certificates,
requests and other information materials (the "Communications") and the website
of the Agent (the "Platform") are provided "as is" and "as available". The Agent
does not warrant the accuracy, adequacy or completeness of the Communications or
the Platform and expressly disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent in connection
with the Communications or the Platform.
(e) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by
36
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of any Borrower against any and all of the obligations of any Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the applicable Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrowers and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, the Agent and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Company (following a demand by such Lender pursuant
to Section 2.11 or 2.14 or upon a reasonable determination by the Company that a
change in law or circumstances has created a reasonable likelihood that such
Lender will make a demand pursuant to Section 2.11 or 2.14 and only if no Event
of Default has occurred and is continuing) upon at least five Business Days'
notice to such Lender and the Agent, will assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes), (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an assignment
of all of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Company pursuant to this Section 9.07(a) shall be arranged by
the Borrowers after consultation with the Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Company pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrowers or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note subject to
such assignment and a processing and recordation fee of $3,500 payable by the
parties to each such assignment, provided, however, that in the case of each
assignment made as a result of a demand by the Company, such recordation fee
shall be payable by the Borrowers except that no such recordation fee shall be
payable in the case of an assignment made at the request of the Company to an
Eligible Assignee that is an existing Lender, and (vii) each such assignment
shall be made with the consent, not to be unreasonably withheld, of the Agent
and the Company, provided that any Lender may, without the approval of the
Borrowers and the Agent, assign all or a portion of its rights to any of its
Affiliates so long as such assignment does not result in any increased cost to,
or obligation of, the Borrowers. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Section 2.11,
37
2.14 and 9.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers.
(d) The Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more
banks or other entities (other than any Borrower or any Affiliate of any
Borrower) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and any Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrowers hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrowers, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by any Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee
38
or participant or proposed assignee or participant, any information relating to
any Borrower furnished to such Lender by or on behalf of such Borrower; provided
that, prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
Confidential Information relating to such Borrower received by it from such
Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time and from time to time by delivery to the Agent of a
Designation Letter, duly executed by the Company and a wholly owned Subsidiary
organized under the laws of a jurisdiction in the United States and in
substantially the form of Exhibit F hereto, designate such Subsidiary as a
"Designated Subsidiary" for all purposes of this Agreement, and, upon
fulfillment of the applicable conditions set forth in Article III and after such
Designation Letter is accepted by the Agent, such Subsidiary shall thereupon
become a Designated Subsidiary for all purposes of this Agreement and, as such,
shall have all of the rights and obligations of a Borrower hereunder. The Agent
shall promptly notify each Lender of each such designation by the Company and
the identity of each such Designated Subsidiary.
(b) Termination. Upon the payment and performance in full
of all of the indebtedness, liabilities and obligations of any Borrower (other
than the Company or any Borrower that is a Significant Subsidiary that is
organized under the laws of a jurisdiction in the United States) under this
Agreement and the Notes issued by it, then, so long as at such time such
Borrower has not submitted a Notice of Revolving Credit Borrowing, such
Borrower's status as a Borrower shall terminate upon notice to such effect from
the Agent to the Lenders (which notice the Agent shall promptly deliver to the
Lenders following its receipt of such a request from the Company). Thereafter,
the Lenders shall be under no further obligation to make any Revolving Credit
Advances to such Borrower.
SECTION 9.09. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Company, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process and (d) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking.
SECTION 9.10. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each Borrower hereby agrees
that service of process in any such action or proceeding brought in the any such
New York State court or in such federal court may be made upon The Xxxxxxxx-Xxxx
Corporation System, Inc. at its offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000-0000 (the "Process Agent") and each Borrower hereby irrevocably appoints
the Process Agent its authorized agent to accept such service of process, and
agrees that the failure of the Process Agent to give any notice of any such
service shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based
39
thereon. Each Borrower hereby further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to such
Borrower at its address specified pursuant to Section 9.02, with a copy
addressed to the Law Department. 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 shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 9.13. Waiver of Jury Trial. Each of the Borrowers, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
LAFARGE NORTH AMERICA INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
LAFARGE FLORIDA, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
LAFARGE MIDWEST, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
LAFARGE SOUTHWEST, INC.
By /s/ Xxxxxx Xxxxxx
-------------------
Title: Vice President & Treasurer
LAFARGE WEST, INC.
By /s/ Xxxxxx Xxxxxx
-------------------
40
Title: Vice President & Treasurer
MINERAL SOLUTIONS, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
PRESQUE ISLE CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
REDLAND GENSTAR, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
REDLAND QUARRIES NY, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
WMI FINANCE CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President
CITIBANK, N.A.,
as Agent
By /s/ Brigitte Vvong
-----------------------------
Title: Vice President
41
Initial Lenders
Commitment
Administrative Agent
$40,000,000 CITIBANK, N.A.
By /s/ Brigitte Vvong
-----------------------------
Title: Vice President
Syndication Agent
$40,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxx
-----------------------------
Title: Vice President
Lenders
$30,000,000 BANK ONE, NA
By /s/ Xxxxx Xxxxx
-----------------------------
Title: Director
$30,000,000 BNP PARIBAS
By /s/ Xxxxxx Xxxxxx du Xxxxxx
----------------------------
Title: Vice President
By /s/ Xxxxxx d Humieres
---------------------
Title: Vice President
$30,000,000 SUNTRUST BANK
By /s/ Xxxxxx Xxxxx
-----------------
Title: Director
$25,000,000 BANK OF AMERICA, N.A.
By /s/ Xxxxxxxxx Xxxx
-------------------
Title: Managing Director
$25,000,000 BANK OF MONTREAL
By /s/ Xxx Xxxxx
--------------
Title: Vice President
42
$25,000,000 BAYERISCHE LANDESBANK GIROZENTRALE
By /s/ Herewald Xxxxxxxx
----------------------
Title: Senior Vice President
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President
$22,500,000 FIRSTAR BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx Xxxx
-----------------
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
--------------------
Title: AVP
$20,000,000 THE BANK OF NOVA SCOTIA
By /s/ Xxxx Xxxxxx
----------------
Title: Managing Director
$12,500,000 XXXXX FARGO BANK, N.A.
By /s/ Xxxx Xxxx
--------------------
Title: Vice President
$300,000,000 Total of the Commitments
43