EXECUTION COPY
$130,000,000
364-DAY CREDIT AGREEMENT
among
DOW XXXXX & COMPANY, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LLOYDS TSB BANK PLC
and
MELLON BANK, N.A.,
as Co-Documentation Agents,
THE BANK OF NEW YORK
and
FLEET NATIONAL BANK,
as Co-Syndication Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of June 24, 2002
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger and Book Runner
Table Of Contents
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 12
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS 12
2.1 Revolving Credit Commitments 12
2.2 The Competitive Loans 14
2.3 Type of Revolving Credit Loans 17
2.4 Fees 17
2.5 Termination or Reduction of Loan Commitments 17
2.6 Repayment of Loans 18
2.7 Optional Prepayments 18
2.8 Interest Rate and Payment Dates 18
2.9 Computation of Interest and Fees 19
2.10 Inability to Determine Interest Rate 19
2.11 Pro Rata Borrowings and Payments 20
2.12 Taxes 21
2.13 Illegality 24
2.14 Requirements of Law 24
2.15 Indemnity 25
2.16 Increase of Loan Commitments 25
2.17 Extension of Termination Date 26
SECTION 3. REPRESENTATIONS AND WARRANTIES 27
3.1 Financial Condition 27
3.2 No Change 27
3.3 Corporate Existence; Compliance with Law 27
3.4 Corporate Power; Authorization; Enforceable Obligations 28
3.5 No Legal Bar 28
3.6 No Material Litigation 28
3.7 No Default 28
3.8 Ownership of Property; Liens 28
3.9 No Burdensome Restrictions 29
3.10 Taxes 29
3.11 Federal Regulations 29
3.12 ERISA 29
3.13 Investment Company Act 29
3.14 Subsidiaries 29
3.15 Purpose of Loans 29
SECTION 4. CONDITIONS PRECEDENT 30
4.1 Conditions to Effectiveness 30
4.2 Conditions to All Loans 30
SECTION 5. AFFIRMATIVE COVENANTS 31
5.1 Financial Statements 31
5.2 Certificates; Other Information 32
5.3 Payment of Obligations 32
5.4 Conduct of Business and Maintenance of Existence 32
5.5 Maintenance of Property; Insurance 32
5.6 Inspection of Property; Books and Records; Discussions 33
5.7 Notices 33
SECTION 6. NEGATIVE COVENANTS 34
6.1 Limitation on Liens 34
6.2 Limitation on Mergers and Sales of Assets 35
6.3 Maintenance of Ratio of Consolidated Total Indebtedness to Annualized
Consolidated Cash Flow 35
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow to Annualized
Consolidated Interest Expense 35
SECTION 7. EVENTS OF DEFAULT 35
SECTION 8. THE ADMINISTRATIVE AGENT 37
8.1 Appointment 37
8.2 Delegation of Duties 38
8.3 Exculpatory Provisions 38
8.4 Reliance by Administrative Agent 38
8.5 Notice of Default 39
8.6 Non-Reliance on Administrative Agent, Other Lenders 39
8.7 Indemnification 39
8.8 Administrative Agent in Its Individual Capacity 40
8.9 Successor Administrative Agent 40
8.10 Documentation Agent and Syndication Agent 40
SECTION 9. MISCELLANEOUS 40
9.1 Amendments and Waivers 40
9.2 Notices 41
9.3 No Waiver; Cumulative Remedies 41
9.4 Survival of Representations and Warranties 42
9.5 Payment of Expenses and Taxes 42
9.6 Successors and Assigns; Participations; Purchasing Lenders 42
9.7 Adjustments; Set-off 46
9.8 Counterparts 46
9.9 Severability 47
9.10 Integration 47
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9.11 Governing Law 47
9.12 Submission To Jurisdiction; Waivers 47
Schedules
1.1 Loan Commitments
3.14 Subsidiaries of the Company
6.1 Existing Liens
9.2 Names and Addresses of Lenders
Exhibits
A Form of Borrowing Notice for Revolving Credit Loans
B Form of Competitive Loan Request
C Form of Competitive Loan Offer
D Form of Competitive Loan Confirmation
E Form of Exemption Certificate
F Form of Opinion of Xxxxx X. Xxxxxxx, Executive Vice President,
General Counsel and Secretary
G Form of Officer's Certificate
H Form of Certificate of the Secretary of the Company
I Form of Competitive Loan Assignment
J Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of June 24, 2002, among DOW XXXXX &
COMPANY, INC., a Delaware corporation (the "Company"), the several banks
and other financial institutions or entities from time to time parties to
this Agreement (the "Lenders"), LLOYDS TSB BANK PLC and MELLON BANK, N.A.,
as co-documentation agents (each in such capacity, a "Documentation
Agent"), THE BANK OF NEW YORK and FLEET NATIONAL BANK, as co-syndication
agents (each in such capacity, a "Syndication Agent"), and JPMORGAN CHASE
BANK, as administrative agent (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and certain of the
Lenders are parties to the 364-Day Credit Agreement dated as of June 25,
2001, as amended (the "Existing Credit Agreement"), and the parties hereto
wish to replace the Existing Credit Agreement with this Agreement and the
4-Year Credit Agreement (as defined below);
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Absolute Rate Competitive Loan Request": any Competitive Loan
Request requesting the Competitive Loan Lenders to offer to make
Competitive Loans at an absolute rate (as opposed to a rate composed of the
Applicable Index Rate plus (or minus) a margin).
"Affiliate": any Person (other than a Subsidiary) which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, (i) to vote 10% or
more of the securities having ordinary voting power for the election of
directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Aggregate Loan Commitments": at any time, the sum of the
aggregate amount of the Loan Commitments then in effect and the aggregate
amount of the Loan Commitments (as defined in the Other Agreements) then in
effect.
"Aggregate Loans": at a particular time, the sum of the then
outstanding principal amount of Revolving Credit Loans and Competitive
Loans.
"Agreement": this Revolving Credit Agreement, as amended,
supplemented or modified from time to time.
"Alternate Base Rate": at any particular date, the highest of
(a) the Prime Rate, (b) 1/2 of 1% above the rate set forth for such date
opposite the caption "Federal Funds (Effective)" in the weekly statistical
release designated as "H.15 (519)," or any successor publication, published
by the Board of Governors of the Federal Reserve System and (c) the Base CD
Rate in effect on such date plus 1%. "Base CD Rate" shall mean a rate per
annum equal to the following:
Three-Month Secondary CD Rate + Assessment Rate
1.00 - Reserve Percentage
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve
System through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board
of Governors of the Federal Reserve System, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable
to ascertain the Base CD Rate or the rate set forth in clause (b) above or
both for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard
to clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the rate set forth in
clause (b) shall be effective on the effective day of such change in such
rate.
"Alternate Base Rate Loans": Revolving Credit Loans at such time
as they are made and/or being maintained at a rate of interest based upon
the Alternate Base Rate.
"Annualized Consolidated Cash Flow": as at the last day of any
fiscal quarter of the Company the Consolidated Cash Flow for the period of
four consecutive fiscal quarters ending on such day.
"Annualized Consolidated Interest Expense": as at the last day
of any fiscal quarter of the Company the Consolidated Interest Expense for
the period of four consecutive fiscal quarters ending on such day.
"Applicable Facility Fee Percentage": on any date, the rate per
annum set forth below which corresponds with the then current rating of the
Company's senior unsecured long-term debt issued by S&P and Xxxxx'x
respectively.
Ratings Applicable Facility Fee
Percentage
AA-/Aa3 or higher 0.06%
A+/A1 0.07%
A/A2 or lower 0.08%
Changes in the Applicable Facility Fee Percentage shall become
effective on the date on which S&P and/or Xxxxx'x changes the rating it has
issued for the Company's senior unsecured long-term debt. In the event of
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split ratings, the lower of such ratings shall apply; if only one of such
two agencies issues a rating, such rating shall apply.
"Applicable Index Rate": in respect of any Competitive Loan
requested pursuant to an Index Rate Competitive Loan Request, the
Eurodollar Rate applicable to the Interest Period for such Competitive
Loan.
"Applicable Margin": on any date with respect to the Loans
comprising any Eurodollar Loans, the rate per annum set forth below which
corresponds with the then current rating of the Company's senior unsecured
long-term debt issued by S&P and Xxxxx'x respectively.
Ratings Applicable Margin
AA-/Aa3 or higher 0.19%
A+/A1 0.23%
A/A2 or lower 0.27%
Changes in the Applicable Margin shall become effective on the
date on which S&P and/or Xxxxx'x changes the rating it has issued for the
Company's senior unsecured long-term debt. In the event of split ratings,
the lower of such ratings shall apply; if only one of such two agencies
issues a rating, such rating shall apply.
"Assessment Rate": for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of
12 C.F.R. Section 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit J.
"Available Loan Commitment": as to any Lender, at a particular
time, an amount equal to such Lender's Commitment Percentage multiplied by
the difference between (a) the amount of the Loan Commitments at such time
and (b) the Aggregate Loans at such time; collectively, as to all the
Lenders, the "Available Loan Commitments."
"Base CD Rate": as defined in the definition of Alternate Base
Rate.
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrowing Date": in respect of any Revolving Credit Loan, the
date on which such Revolving Credit Loan is made.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close.
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"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other
than a corporation) and any and all warrants, rights or options to purchase
any of the foregoing.
"Closing Date": the date on which the conditions in Section 4
are satisfied in full, which shall be a Business Day which is on or before
the date of the initial Loans.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Combined Loan Commitments": as to any Lender at any time, the
sum of such Lender's Loan Commitment then in effect and such Lender's Loan
Commitment (as defined in the Other Agreements) then in effect.
"Commitment Percentage": as to any Lender at any particular
time, the percentage of the aggregate Loan Commitments then constituted by
such Lender's Loan Commitment.
"Commitment Period": the period from and including the Closing
Date to but not including the Maturity Date or such earlier date as the
Loan Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or (c) of the Code.
"Competitive Loan": each Competitive Loan made pursuant to
subsection 2.2; the aggregate amount advanced by a Competitive Loan Lender
pursuant to subsection 2.2 on each Competitive Loan Date shall constitute
one or more Competitive Loans, as specified by such Competitive Loan Lender
pursuant to subsection 2.2(b)(vi).
"Competitive Loan Assignees": as defined in subsection 9.6(c).
"Competitive Loan Assignment": a Competitive Loan Assignment,
substantially in the form of Exhibit I.
"Competitive Loan Confirmation": each confirmation by the
Company of its acceptance of Competitive Loan Offers, which Competitive
Loan Confirmation shall be substantially in the form of Exhibit D and shall
be delivered to the Administrative Agent in writing, by telex or by
facsimile transmission.
"Competitive Loan Date": each date on which a Competitive Loan
is made pursuant to subsection 2.2.
"Competitive Loan Lenders": Lenders from time to time offering
Competitive Loans.
"Competitive Loan Offer": each offer by a Competitive Loan
Lender to make Competitive Loans pursuant to a Competitive Loan Request,
which Competitive Loan Offer shall contain the information specified in
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Exhibit C and shall be delivered to the Administrative Agent by telephone,
immediately confirmed by telex or facsimile transmission.
"Competitive Loan Request": each request by the Company for
Competitive Loan Lenders to submit bids to make Competitive Loans, which
shall contain the information in respect of such requested Competitive
Loans specified in Exhibit B and shall be delivered to the Administrative
Agent in writing, by telex or facsimile transmission, or by telephone,
immediately confirmed by telex or facsimile transmission.
"Consolidated Cash Flow": for any period, Consolidated Net
Income of the Company and its Subsidiaries for such period plus the
aggregate amounts deducted in determining such Consolidated Net Income in
respect of (i) Consolidated Interest Expense, (ii) amortization expenses,
(iii) depreciation expenses and (iv) income taxes, each of clauses (i),
(ii), (iii) and (iv) determined in accordance with GAAP, but after
deducting in the calculation thereof, income representing equity in the
earnings of Affiliates not received in cash or, as the case may be, after
restoring thereto deductions representing equity in the losses of
Affiliates for which neither the Company nor any of its Subsidiaries is
liable.
"Consolidated Interest Expense": for any period, interest
expense of the Company and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income (or deficit) of the Company and its Subsidiaries for such period
(taken as a cumulative whole), determined in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts
which would be included under shareholders' equity on a consolidated
balance sheet of the Company and its Subsidiaries at such date, determined
in accordance with GAAP.
"Consolidated Total Assets": at a particular date, all amounts
which would be included as assets on a consolidated balance sheet of the
Company and its Subsidiaries at such date, determined in accordance with
GAAP.
"Consolidated Total Capitalization": at a particular date, the
sum of Consolidated Net Worth and Consolidated Total Indebtedness.
"Consolidated Total Indebtedness": at a particular date, all
items which would, in conformity with GAAP, be classified as Indebtedness
on a consolidated balance sheet of the Company and its Subsidiaries as at
such date, but in any event including without any duplication (a)
indebtedness arising under acceptance facilities and the face amount of all
letters of credit issued for the account of the Company or any Subsidiary
and all drafts drawn thereunder, (b) all Indebtedness secured by any Lien
on any property owned by the Company or any Subsidiary even though the
Company or such Subsidiary has not assumed or otherwise become liable for
the payment thereof and (c) all Guarantee Obligations of the Company and
its Subsidiaries in respect of Indebtedness of other Persons.
"Continuing Directors": the directors of the Company on the
Closing Date and each other director, if, in each case, such other
director's nomination for election to the board of directors of the Company
5
is recommended by at least a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Decision Date": as defined in subsection 2.17(b).
"Default": any of the events specified in Section 7, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference
to the rate at which the Administrative Agent is offered Dollar deposits at
or about 11:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
6
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, event or act has been satisfied.
"Existing Credit Agreement": as defined in the recitals hereto.
"Facility Fee": as defined in subsection 2.4; collectively, the
"Facility Fees."
"Financing Lease": (a) any lease of property, real or personal,
the then present value of the minimum rental commitment under which is
required to be capitalized on a consolidated balance sheet of the Company
and its Subsidiaries in accordance with GAAP, and (b) any other such lease
to the extent that the obligations thereunder are capitalized on a balance
sheet of the lessee.
"4-Year Credit Agreement": the 4-Year Credit Agreement, dated
as of the date hereof, among the Company, the several banks and other
financial institutions or entities from time to time parties thereto,
Lloyds TSB Bank plc and Mellon Bank, N.A., as co-documentation agents, The
Bank of New York and Fleet National Bank, as co-syndication agents, and
JPMorgan Chase Bank, as administrative agent, as amended, supplemented or
otherwise modified or replaced from time to time.
"5-Year Credit Agreement": the 5-Year Credit Agreement, dated
as of June 25, 2001, among the Company, the several banks and other
financial institutions or entities from time to time parties thereto,
Lloyds TSB Bank plc and Westdeutsche Landesbank Girozentrale, as co-
documentation agents, The Bank of New York and Fleet National Bank, as co-
syndication agents, and JPMorgan Chase Bank (formerly The Chase Manhattan
Bank), as administrative agent, as amended, supplemented or otherwise
modified or replaced from time to time.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time except that for purposes of
subsections 6.3 and 6.4, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in
the preparation of the most recent audited financial statements delivered
pursuant to subsection 3.1.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or
not contingent (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
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(c) to purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Company in good faith.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed money
(including, without limitation, any indebtedness evidenced by any note,
bond, debenture or other instrument) or for the deferred purchase price of
property or services in respect of which such Person is liable, as obligor,
other than accounts payable for the deferred purchase price of property or
services incurred in the ordinary course of business and which are not in
excess of 90 days past the invoice or billing date, or if in excess of 90
days past the invoice or billing date are being contested in good faith by
appropriate actions or proceedings, (b) obligations of such Person under
Financing Leases and (c) any obligations of such Person in respect of
letters of credit, acceptances, or similar obligations issued or created
for the account of such Person.
"Index Rate Competitive Loan Request": any Competitive Loan
Request requesting the Competitive Loan Lenders to offer to make
Competitive Loans at an interest rate equal to the Applicable Index Rate
plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is Insolvent within the meaning of such term as
used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December, commencing on the
first of such days to occur after Alternate Base Rate Loans are made, (b)
as to any Eurodollar Loan in respect of which the Company has selected an
Interest Period of one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of which the Company
has selected a longer Interest Period than the periods described in clause
(b) above, the last day of each March, June, September and December falling
within such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan, the
period commencing on the Borrowing Date with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected by
the Company in its notice of borrowing as provided in subsection 2.1(d);
(b) with respect to any Alternate Base Rate Loan, the period
commencing on the Borrowing Date with respect to such Alternate Base Rate
Loan and ending on the earliest to occur of the last day of March, June,
September or December following such Borrowing Date;
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(c) with respect to any Competitive Loan made pursuant to a
Competitive Loan Request, the period commencing on the Competitive Loan
Date with respect to such Competitive Loan and ending on the date not less
than 7 nor more than 180 days thereafter, as specified by the Company in
such Competitive Loan Request;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or a
Competitive Loan made pursuant to an Index Rate Competitive Loan Request
would otherwise end on a day which is not a Working Day, that Interest
Period shall be extended to the next succeeding Working Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Working Day;
(B) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Working Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Working Day of a calendar
month;
(C) if any Interest Period pertaining to an Alternate Base Rate
Loan or a Competitive Loan made pursuant to an Absolute Rate Competitive
Loan Request would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day;
(D) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on such Maturity Date; and
(E) the Company shall select Interest Periods so as not to
require a prepayment of any Eurodollar Loan during an Interest Period for
such Loan.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"Loan" and "Loans": the collective reference to the Revolving
Credit Loans and the Competitive Loans.
"Loan Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Credit Loans in an aggregate principal
amount not to exceed the amount set forth under the heading "Loan
Commitment" opposite such Lender's name on Schedule 1.1 or in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof (including, without limitation, pursuant to the provisions of the
second sentence of subsection 2.1(a)). The original aggregate amount of
the Loan Commitments is $130,000,000.
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"Margin Stock": "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Maturity Date": at any time, the date that is one year after
the Termination Date then in effect.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to any promissory notes
evidencing Loans.
"Other Agreements": the 4-Year Credit Agreement and the 5-Year
Credit Agreement.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or
any Note.
"Participants": as defined in subsection 9.6(b).
"Payment Sharing Notice": a written notice from the Company, or
any Lender, informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to
allocate payments thereafter received from the Company in accordance with
subsection 2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at any particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate": the rate of interest publicly announced by
JPMorgan Chase Bank in New York, New York from time to time as its prime
rate. The Prime Rate is not intended to be the lowest rate of interest
charged by JPMorgan Chase Bank in connection with extensions of credit to
debtors.
"Purchasing Lenders": as defined in subsection 9.6(d).
"Ratings": the ratings of Moody's and S&P applicable to the
Company's senior unsecured non-credit-enhanced long-term debt obligations.
10
"Refunding Borrowing": a borrowing of Revolving Credit Loans
which, after application of the proceeds thereof, results in no net
increase in the aggregate outstanding principal amount of Revolving Credit
Loans made by any Lender.
"Register": as defined in subsection 9.6(e).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such
term as used in Section 4245 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder.
"Required Lenders": at any date, Lenders having Loan Commitments
aggregating over one-half of the total Loan Commitments (or, at any time
the Loan Commitments have expired or terminated, the Lenders having over
one-half of the total Loans then outstanding).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reserve Percentage": for any day, that percentage (expressed as
a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor), for determining
the maximum reserve requirement for a Depository Institution (as defined in
Regulation D of such Board as in effect from time to time) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Responsible Officer": the Chief Executive Officer or the
President of the Company or, with respect to financial matters, the Chief
Financial Officer of the Company.
"Revolving Credit Loans": Loans made pursuant to subsection 2.1;
individually a "Revolving Credit Loan."
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is not a Multiemployer
Plan.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership, limited liability company or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
11
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": June 23, 2003, or such earlier date on which
the Loan Commitments are terminated or such later date to which the
Termination Date shall be extended pursuant to subsection 2.17 hereof.
"Three-Month Secondary CD Rate": as defined in the definition of
Alternate Base Rate.
"Transferees": as defined in subsection 9.6(g).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
"Utilization Fee": as defined in subsection 2.4(b).
"Working Day": any day on which dealings in foreign currencies
and exchange between banks may be carried on in London, England and in New
York, New York.
1.2 Other Definitional Provisions.(a) Unless otherwise
specified herein, all terms defined in this Agreement shall have the
defined meanings when used in any Notes or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to
the extent not defined, shall have the respective meanings given to them
under GAAP, (ii) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation," (iii) the word
"incur" shall be construed to mean incur, create, issue, assume or become
liable in respect of (and the words "incurred" and "incurrence" shall have
correlative meanings), and (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Capital
Stock, securities, revenues, accounts, leasehold interests and contract
rights.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make revolving
credit loans (individually a "Revolving Credit Loan") to the Company from
time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding not to exceed the amount of such Lender's Loan
Commitment; provided that no Revolving Credit Loan shall be made hereunder
which would result in the Aggregate Loans outstanding hereunder being in
excess of the Loan Commitments then in effect. During the Commitment
Period the Company may use the Loan Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in
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accordance with the terms and conditions hereof, provided, that the Loan
Commitments shall be reduced on the Termination Date to an amount equal to
the amount of the Aggregate Loans then outstanding and, if the Aggregate
Loans shall at any time or from time to time be reduced thereafter, the
Loan Commitments shall be reduced pro rata simultaneously by an amount
equal to such reduction in the Aggregate Loans, and provided, further, that
on and after the Termination Date, no Revolving Credit Loans may be made
which are not Refunding Borrowings or Revolving Credit Loans the proceeds
of which are used to repay maturing Competitive Loans.
(b) No Eurodollar Loan shall be made after the date that is 30
days prior to the Maturity Date.
(c) Each Revolving Credit Loan shall finally mature on the
Maturity Date. Each Revolving Credit Loan shall bear interest on the
unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in, and shall be
payable on the dates specified in, subsections 2.8 and 2.9.
(d) The Company may borrow under the Loan Commitments during
the Commitment Period on any Working Day if the borrowing is a Eurodollar
Loan or on any Business Day if the borrowing is an Alternate Base Rate
Loan; provided that the Company shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative
Agent prior to 10:00 A.M., New York City time, (a) 3 Working Days prior to
the requested Borrowing Date, in the case of Eurodollar Loans, and (b) on
the requested Borrowing Date, in the case of Alternate Base Rate Loans).
Each such notice shall be given in writing, by telex or by facsimile
transmission substantially in the form of Exhibit A (with appropriate
insertions) or shall be given by telephone (specifying the information set
forth in Exhibit A) promptly confirmed by notice given in writing, by telex
or by facsimile transmission substantially in the form of Exhibit A (with
appropriate insertions). Each borrowing pursuant to the Loan Commitments
shall be in an aggregate principal amount equal to (a) the lesser of, in
the case of Alternate Base Rate Loans, (i) $10,000,000 or a whole multiple
of $1,000,000 in excess thereof, and (ii) the Available Loan Commitments
and (b) in the case of Eurodollar Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of such notice from the Company
the Administrative Agent shall promptly notify each Lender thereof. Each
Lender will make the amount of its share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent set forth in subsection 9.2 at or before 11:00 A.M. on
the Borrowing Date requested by the Company in funds immediately available
to the Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Loans will then be made available to the Company by
the Administrative Agent at the office of the Administrative Agent
specified in subsection 9.2 by crediting the account of the Company on the
books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
(e) If any Lender makes a Revolving Credit Loan on a day on
which the Company is to repay all or any part of any outstanding Revolving
Credit Loan from such Lender, such Lender shall apply the proceeds of the
requested Revolving Credit Loan to make such repayment, and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by such Lender to the
Administrative Agent as provided in paragraph (d) above, or remitted by the
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Company to the Administrative Agent for the account of such Lender as
provided in subsection 2.6, as the case may be.
2.2 The Competitive Loans. (a) The Lenders may make
Competitive Loans to the Company from time to time on any Business Day (in
the case of Competitive Loans made pursuant to an Absolute Rate Competitive
Loan Request) or any Working Day (in the case of Competitive Loans made
pursuant to an Index Rate Competitive Loan Request) during the period from
the Closing Date until the date occurring 14 days prior to the Maturity
Date in the manner set forth in this subsection 2.2 and in amounts such
that the Aggregate Loans at any time outstanding shall not exceed the
aggregate amount of the Loan Commitments at such time; provided, however,
that the aggregate principal amount of the outstanding Competitive Loans of
a Lender may (but shall not be required to) exceed its Loan Commitment.
(b) (i) The Company shall request Competitive Loans by
delivering a Competitive Loan Request to the Administrative Agent, not
later than 12:00 Noon (New York City time) four Working Days prior to the
proposed Competitive Loan Date (in the case of an Index Rate Competitive
Loan Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Competitive Loan Date (in the case of an
Absolute Rate Competitive Loan Request); provided that (i) an Index Rate
Competitive Loan request shall not be made until at least one Business Day
has passed since the most recent Competitive Loan Date and (ii) an Absolute
Rate Competitive Loan Request shall not be made until at least four
Business Days have passed since the most recent Competitive Loan Date.
Each Competitive Loan Request may solicit bids for Competitive Loans in an
aggregate principal amount of $10,000,000 or an integral multiple in excess
of $1,000,000 thereof and for not more than three alternative maturity
dates for such Competitive Loans. The maturity date for each Competitive
Loan shall be not less than 7 days nor more than 180 days after the
Competitive Loan Date therefor (and in any event not after the Maturity
Date and in any event subject to the proviso to the definition of "Interest
Period"). The Administrative Agent shall promptly notify each Lender by
telex or facsimile transmission of the contents of each Competitive Loan
Request received by it.
(ii) In the case of an Index Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at the Applicable Index Rate plus or minus a margin for
each such Competitive Loan determined by such Competitive Loan Lender in
its sole discretion. Any such irrevocable offer shall be made by
delivering a Competitive Loan Offer to the Administrative Agent, before
10:30 A.M. (New York City time) three Working Days before the proposed
Competitive Loan Date, setting forth the maximum amount of Competitive
Loans for each maturity date, and the aggregate maximum amount for all
maturity dates, which such Lender would be willing to make (which amounts
may, subject to subsection 2.2(a), exceed such Competitive Loan Lender's
Loan Commitment) and the margin above or below the Applicable Index Rate at
which such Competitive Loan Lender is willing to make each such Competitive
Loan; the Administrative Agent shall advise the Company before 11:15 A.M.
(New York City time) three Working Days before the proposed Competitive
Loan Date, of the contents of each such Competitive Loan Offer received by
it. If the Administrative Agent in its capacity as a Competitive Loan
Lender shall, in its sole discretion, elect to make any such offer, it
shall advise the Company of the contents of its Competitive Loan Offer
14
before 10:15 A.M. (New York City time) three Working Days before the
proposed Competitive Loan Date.
(iii) In the case of an Absolute Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at a rate or rates of interest for each such Competitive
Loan determined by such Competitive Loan Lender in its sole discretion.
Any such irrevocable offer shall be made by delivering a Competitive Loan
Offer to the Administrative Agent, before 9:30 A.M. (New York City time) on
the proposed Competitive Loan Date, setting forth the maximum amount of
Competitive Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Competitive Loan Lender would be willing
to make (which amounts may, subject to subsection 2.2(a), exceed such
Competitive Loan Lender's Loan Commitment) and the rate or rates of
interest at which such Competitive Loan Lender is willing to make each such
Competitive Loan; the Administrative Agent shall advise the Company before
10:15 A.M. (New York City time) on the proposed Competitive Loan Date of
the contents of each such Competitive Loan Offer received by it. If the
Administrative Agent in its capacity as a Competitive Loan Lender shall, in
its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Competitive Loan Offer before 9:15 A.M. (New
York City time) on the proposed Competitive Loan Date.
(iv) The Company shall before 11:30 A.M. (New York City time) three
Working Days before the proposed Competitive Loan Date (in the case of
Competitive Loans requested by an Index Rate Competitive Loan Request) and
before 10:30 A.M. (New York City time) on the proposed Competitive Loan
Date (in the case of Competitive Loans requested by an Absolute Rate
Competitive Loan Request) either, in its absolute discretion:
(A) cancel such Competitive Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Competitive
Loan Lender or Competitive Loan Lenders pursuant to clause (ii) or clause
(iii) above, as the case may be, by giving telephone notice to the
Administrative Agent (immediately confirmed by delivery to the
Administrative Agent of a Competitive Loan Confirmation) of the amount of
Competitive Loans for each relevant maturity date to be made by each
Competitive Loan Lender (which amount for each such maturity date shall be
equal to or less than the maximum amount for such maturity date specified
in the Competitive Loan Offer of such Competitive Loan Lender, and for all
maturity dates included in such Competitive Loan Offer shall be equal to or
less than the aggregate maximum amount specified in such Competitive Loan
Offer for all such maturity dates) and reject any remaining offers made by
Competitive Loan Lenders pursuant to clause (ii) or clause (iii) above, as
the case may be; provided, however, that (x) the Company may not accept
offers for Competitive Loans for any maturity date in an aggregate
principal amount in excess of the maximum principal amount requested in the
related Competitive Loan Request, (y) if the Company accepts any of such
offers, it must accept offers strictly based upon pricing for such relevant
maturity date and no other criteria whatsoever and (z) if two or more
Competitive Loan Lenders submit offers for any maturity date at identical
pricing and the Company accepts any of such offers but does not wish to
borrow the total amount offered by such Competitive Loan Lenders with such
identical pricing, the Company shall accept offers from all of such
15
Competitive Loan Lenders in amounts allocated among them pro rata according
to the amounts offered by such Competitive Loan Lenders (or as nearly pro
rata as shall be practicable after giving effect to the requirement that
any Competitive Loans made by a Competitive Loan Lender on a Competitive
Loan Date for each relevant maturity date shall be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, it
being agreed that to the extent that it is impossible to make allocations
in accordance with the provisions of this clause (B) such allocations shall
be made in accordance with the instructions of the Company).
(v) If the Company notifies the Administrative Agent that a
Competitive Loan Request is cancelled pursuant to clause (iv) (A) above,
the Administrative Agent shall give prompt telephone notice thereof to the
Competitive Loan Lenders, and the Competitive Loans requested thereby shall
not be made.
(vi) If the Company accepts pursuant to clause (iv) (B) above one or
more of the offers made by any Competitive Loan Lender or Competitive Loan
Lenders, the Administrative Agent shall promptly notify each Competitive
Loan Lender which has made such an offer of the aggregate amount of such
Competitive Loans to be made on such Competitive Loan Date for each
maturity date and of the acceptance or rejection of any offers to make such
Competitive Loans made by such Competitive Loan Lender. Each Competitive
Loan Lender which is to make a Competitive Loan shall, before 12:00 Noon
(New York City time) on the Competitive Loan Date specified in the
Competitive Loan Request applicable thereto, make available to the
Administrative Agent at its office set forth in subsection 9.2 the amount
of Competitive Loans to be made by such Competitive Loan Lender, in
immediately available funds. The Administrative Agent will make such funds
available to the Company as soon as practicable on such date at the
Administrative Agent's aforesaid address. As soon as practicable after
each Competitive Loan Date, the Administrative Agent shall notify each
Lender of the aggregate amount of Competitive Loans advanced on such
Competitive Loan Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and reborrow under
this subsection 2.2.
(d) The Company shall repay to the Administrative Agent for the
account of each Competitive Loan Lender which has made a Competitive Loan
(or the Competitive Loan Assignee in respect thereof, as the case may be)
on the maturity date of each Competitive Loan (such maturity date being
that specified by the Company for repayment of such Competitive Loan in the
related Competitive Loan Request) the then unpaid principal amount of such
Competitive Loan. The Company shall not have the right to prepay any
principal amount of any Competitive Loan.
(e) The Company shall pay interest on the unpaid principal
amount of each Competitive Loan from the Competitive Loan Date to the
stated maturity date thereof, at the rate of interest determined pursuant
to paragraph (b) above (calculated on the basis of a 360 day year for
actual days elapsed), payable on the interest payment date or dates
specified by the Company for such Competitive Loan in the related
Competitive Loan Request. If all or a portion of the principal amount of
any Competitive Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue principal amount
shall, without limiting any rights of any Lender under this Agreement, bear
16
interest from the date on which such payment was due at a rate per annum
which is 2% above the rate which would otherwise be applicable thereto
until the scheduled maturity date with respect thereto, and for each day
thereafter at a rate per annum which is 2% above the Alternate Base Rate
until paid in full (as well after as before judgment).
2.3 Type of Revolving Credit Loans. The Revolving Credit Loans
may be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii) a
combination thereof. Each borrowing of Revolving Credit Loans shall be in
an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof.
2.4 Fees. (a) The Company agrees to pay, in immediately
available funds, to the Administrative Agent for the account of each Lender
a facility fee (a "Facility Fee") for the period from and including the
date of this Agreement to, but excluding, the Maturity Date, payable
quarterly in arrears on the last day of each March, June, September and
December and on the Maturity Date (or such earlier date on which the Loan
Commitments shall terminate and the Loans and all interest, fees and other
amounts in respect thereof shall have been paid in full), commencing on the
first of such dates to occur after the date hereof, at a rate per annum
equal to the Applicable Facility Fee Percentage from time to time in effect
on each Lender's portion of the daily average Loan Commitments in effect,
whether used or unused, during the period for which payment is being made.
(b) The Company agrees to pay, in immediately available funds,
to the Administrative Agent for the account of each Lender a fee (the
"Utilization Fee") based upon the average daily amount of the outstanding
Loans of such Lender at a rate per annum equal to 0.05%, when and for as
long as the aggregate outstanding principal amount of the sum of (a) the
Loans hereunder plus (b) the aggregate principal amount of the Loans (as
defined therein) under the Other Agreements exceeds 50% of (i) until the
Termination Date, the Aggregate Loan Commitments and (ii) from the
Termination Date through the Maturity Date, the aggregate amount of the
Loan Commitments in effect on the Termination Date immediately prior to
giving effect to any reduction thereof required to occur on such date
pursuant to the first proviso of the second sentence of subsection 2.1(a)
plus the aggregate amount of the Loan Commitments (as defined therein)
under the Other Agreements. The Utilization Fee shall be payable quarterly
in arrears on the last day of each March, June, September and December,
commencing on the first of such dates to occur after the date hereof, and
on the Maturity Date (or such earlier date on which the Loan Commitments
shall terminate and the Loans and all interest, fees and other amounts in
respect thereof shall have been paid in full).
2.5 Termination or Reduction of Loan Commitments. The Company
shall have the right, upon not less than 5 Business Days' notice to the
Administrative Agent, to terminate the Loan Commitments or, from time to
time, to reduce pro rata the amount of the Loan Commitments, provided that
(a) any such reduction shall be accompanied by prepayment of the Revolving
Credit Loans, together with accrued interest on the amount so prepaid to
the date of such prepayment, to the extent, if any, that the amount of the
Revolving Credit Loans then outstanding exceeds the amount of the Loan
Commitments as then reduced, (b) any such termination of the Loan
Commitments shall be accompanied by prepayment in full of the Revolving
Credit Loans then outstanding, together with accrued interest thereon to
the date of such prepayment, and the payment of any unpaid Facility Fee or
Utilization Fee then accrued hereunder and (c) any termination of the Loan
Commitments while Eurodollar Loans are outstanding and any reduction of the
17
aggregate amount of the Loan Commitments that reduces the amount of the
Loan Commitments below the principal amount of the Eurodollar Loans then
outstanding may be made only on the last day of the respective Interest
Periods for such Eurodollar Loans. Any such reduction shall be in an
amount of $10,000,000 or a whole multiple thereof, and shall reduce
permanently the amount of the Loan Commitments then in effect.
2.6 Repayment of Loans. Subject to subsection 2.1(e), the
Company will pay to the Administrative Agent for the account of each Lender
the unpaid principal amount of each Revolving Credit Loan made by such
Lender, plus all interest accrued thereon, on the last day of the Interest
Period applicable thereto.
2.7 Optional Prepayments.(a) The Company may on the last day
of the relevant Interest Period if the Loans to be prepaid are in whole or
in part Eurodollar Loans, or at any time and from time to time if the Loans
to be prepaid are Alternate Base Rate Loans, prepay the Revolving Credit
Loans, in whole or in part, without premium or penalty, upon at least three
Business Days' (in the case of Eurodollar Loans) or one Business Day's (in
the case of Alternate Base Rate Loans) irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Alternate Base Rate Loans
or a combination thereof, and if of a combination thereof, the amount of
prepayment allocable to each. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. If such
notice is given, the Company shall make such prepayment, and the payment
amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments shall be in an aggregate principal
amount of $10,000,000 or a whole multiple thereof, and may only be made if,
after giving effect thereto, subsection 2.7(c) shall not have been
contravened.
(b) The Company may not prepay Competitive Loans without the
consent of the relevant Lender.
(c) All payments and prepayments hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Revolving Credit Loans which
are Eurodollar Loans having the same Interest Period shall not be less than
$10,000,000.
2.8 Interest Rate and Payment Dates. The Eurodollar Loans
shall bear interest for each Interest Period with respect thereto on the
unpaid principal amount thereof at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the
period from and including the date thereof until maturity on the unpaid
principal amount thereof at a rate per annum equal to the Alternate Base
Rate.
(c) (i) If all or a portion of the principal amount of any
Revolving Credit Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection
2.8 plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
18
equal to the rate then applicable to Alternate Base Rate Loans plus 2%, in
each case, with respect to clauses (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of
this subsection 2.8 shall be payable from time to time on demand.
(e) Anything in this agreement to the contrary notwithstanding,
at all times after the Termination Date each rate at which interest shall
accrue pursuant to this Agreement shall be .125% in excess of the rate
otherwise determined pursuant to this subsection 2.8.
2.9 Computation of Interest and Fees. (a) All interest in
respect of Alternate Base Rate Loans shall be calculated on the basis of a
360 day year for the actual days elapsed, except where the applicable
interest rate for such Loan is the Prime Rate, in which case the rate per
annum shall be computed on the basis of a 365 (or 366 as the case may be)
day year for the actual days elapsed. Facility Fees, Utilization Fees and
interest in respect of Eurodollar Loans shall be calculated on the basis of
a 360 day year for the actual days elapsed. The Administrative Agent shall
as soon as practicable notify the Company and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Alternate Base Rate, the Applicable
Margin or the Reserve Percentage shall become effective as of the opening
of business on the day on which such change in the Alternate Base Rate is
announced or such Applicable Margin changes as provided herein or such
change in the Reserve Percentage shall become effective. The
Administrative Agent shall as soon as practicable notify the Company and
the Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Company and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Company, deliver to the Company a statement showing the quotations used by
the Administrative Agent in determining any interest rate pursuant to
subsection 2.8(a) or (c).
2.10 Inability to Determine Interest Rate. (a) In the event
that the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Company) that by reason of
circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for any
requested Interest Period with respect to proposed Revolving Credit Loans
that the Company has requested be made as Eurodollar Loans, the
Administrative Agent shall forthwith give telex or facsimile notice of such
determination, confirmed in writing, to the Company and the Lenders at
least one day prior to the requested Borrowing Date for such Eurodollar
Loans. If such notice is given any requested Eurodollar Loans shall be
made as Alternate Base Rate Loans. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans shall be made.
(b) In the event that the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Company) that by reason of circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any Interest Period with respect to proposed
Competitive Loans to be made pursuant to an Index Rate Competitive Loan
19
Request, the Administrative Agent shall forthwith give telex, telecopy or
telephone notice of such determination, confirmed in writing, to the
Company and the Lenders at least two Business Days prior to the proposed
Competitive Loan Date, and such Competitive Loans shall not be made on such
Competitive Loan Date. Until any such notice has been withdrawn by the
Administrative Agent, no further Index Rate Competitive Loan Requests shall
be submitted by the Company.
2.11 Pro Rata Borrowings and Payments. Each borrowing by
the Company of Revolving Credit Loans shall be made ratably from the
Lenders in accordance with their Commitment Percentages.
(b) Whenever any payment received by the Administrative Agent
under this Agreement is insufficient to pay in full all amounts then due
and payable to the Administrative Agent and the Lenders under this
Agreement, and the Administrative Agent has not received a Payment Sharing
Notice (or if the Administrative Agent has received a Payment Sharing
Notice but the Event of Default specified in such Payment Sharing Notice
has been cured or waived), such payment shall be distributed and applied by
the Administrative Agent and the Lenders in the following order: first, to
the payment of fees and expenses due and payable to the Administrative
Agent, acting as Administrative Agent for the benefit of the Lenders, under
and in connection with this Agreement; second, to the payment of all
expenses due and payable under subsection 9.5, ratably among the Lenders in
accordance with the aggregate amount of such payments owed to each such
Lender; third, to the payment of fees due and payable under subsection 2.4,
ratably among the Lenders in accordance with their Commitment Percentages;
fourth, to the payment of interest then due and payable under this
Agreement, ratably among the Lenders in accordance with the aggregate
amount of interest owed to each such Lender; and fifth, to the payment of
the principal amount of the Loans which is then due and payable, ratably
among the Lenders in accordance with the aggregate principal amount owed to
each such Lender.
(c) After the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement shall be distributed and applied
by the Administrative Agent and the Lenders in the following order: first,
to the payment of all amounts described in clauses first through third of
the foregoing paragraph (b), in the order set forth therein; and second, to
the payment of the interest accrued on and the principal amount of all of
the Loans, regardless of whether any such amount is then due and payable,
ratably among the Lenders in accordance with the aggregate accrued interest
plus the aggregate principal amount owed to such Lender.
(d) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to the Administrative Agent for
the account of the Lenders at the Administrative Agent's office specified
in subsection 9.2 in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders entitled
thereto promptly upon receipt in like funds as received. If any payment
hereunder of fees or principal of or interest on Alternate Base Rate Loans
or Competitive Loans made pursuant to an Absolute Rate Competitive Loan
Request, becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable during
such extension at the rate then applicable thereunder.
20
2.12 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded
Taxes and Other Taxes) interest or any such other amounts payable hereunder
at the rates or in the amounts specified in this Agreement, provided,
however, that the Company shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this subsection 2.12 or failure to
obtain either U.S. Internal Revenue Service Form W-8BEN or U.S. Internal
Revenue Service Form W-8ECI or any applicable successor form from any
Transferee that is a Participant or a Competitive Loan Assignee certifying
that such Participant or Competitive Loan Assignee is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Company with respect to such Non-
Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Company, as promptly as possible thereafter the Company shall send
to the Administrative Agent for its own account or for the account of the
relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Company, or other evidence of payment
reasonably satisfactory to the Administrative Agent, showing payment
thereof. If the Company fails to pay any Non-Excluded Taxes or Other Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Company shall indemnify the Administrative Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure.
(d) (i) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or
other entity created or organized in or under the laws of the United States
of America (or any jurisdiction thereof), or any estate or trust that is
subject to federal income taxation regardless of the source of its income
21
(a "Non-U.S. Lender") shall deliver to the Company and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the
related participation shall have been purchased, and in the case of a
Competitive Loan Assignee, to the Lender from which the related Competitive
Loan shall have been assigned) two copies of (A) either (1) U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or (2) in the case of a Non-
U.S. Lender that does not meet the requirements of the documents described
in clause (1) hereof claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest," a statement substantially in the form of Exhibit E
and (B) a Form W-8BEN or W-9, including, where applicable, with respect to
both clauses (1) and (2) above, any such forms required to be provided to
certify to such exemption on behalf of such Non-U.S. Lender's beneficial
owners, or, in each case, any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Company under this Agreement and any
Notes. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation, and in the case of a Competitive Loan Assignee, on or before
the date of such Competitive Loan Assignment). In addition, each Non-U.S.
Lender shall deliver such forms (and, where applicable, any such forms on
behalf of its beneficial owners) promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each
Non-U.S. Lender shall promptly notify the Company at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Company (or any other form of certification adopted by
the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is
not legally able to deliver.
(ii) Each Lender which is not a Non-U.S. Lender shall deliver
to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the
Lender from which the related Competitive Loan shall have been assigned)
two copies of a statement which shall contain the address of such Lender's
office or place of business in the United States and shall be signed by an
authorized officer of such Lender, together with two duly completed copies
of Form W-9 (or any applicable successor form) unless it establishes to the
satisfaction of the Company that it is otherwise eligible for an exemption
from backup withholding tax or other applicable withholding tax. Each such
Lender shall deliver to the Company and the Administrative Agent (or, in
the case of a Participant, to the Lender from which the related
participation shall have been purchased, and in the case of a Competitive
Loan Assignee, to the Lender from which the related Competitive Loan shall
have been assigned) two further duly completed and signed forms and
statements (or successor forms) at or before the time any such form or
statement becomes obsolete.
(iii) Each Lender agrees to indemnify and hold harmless the
Company and the Administrative Agent from and against any taxes imposed by
or on behalf of the United States or any taxing jurisdiction thereof,
penalties, additions to tax, fines, interest or other liabilities, costs or
losses, including, without limitation, reasonable attorney's fees and
expenses incurred or payable by the Company or the Administrative Agent as
a result of the failure of the Company or the Administrative Agent to
comply with its obligations to deduct or withhold any taxes imposed by or
on behalf of the United States or any taxing jurisdiction thereof
22
(including penalties, additions to tax, fines or interest on such taxes)
from any payments made pursuant to this Agreement which failure resulted
from the Company's or the Administrative Agent's reliance on any
representation, covenant, form, statement, certificate or other information
provided to it by such Lender pursuant to this subsection 2.12(d).
(e) A Lender that is entitled to an exemption from or reduction
of non-U.S. withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Company
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law or reasonably requested by the Company, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially prejudice the
legal position of such Lender.
(f) Without limiting the other provisions of this subsection
2.12, each Lender claiming entitlement to additional amounts under this
subsection 2.12 agrees to use reasonable efforts, including designating a
different lending office for funding or booking its Loans hereunder, to
avoid or to minimize any amounts which might otherwise be payable pursuant
to this subsection; provided, however, that such efforts shall not cause
the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed in the sole reasonable judgment of such Lender to
be material.
(g) If any Lender or Participant identifies a refund of or
credit with respect to an amount of taxes with respect to which the Company
paid to or on behalf of such Lender an additional amount pursuant to this
subsection 2.12 (a "Tax Credit"), the Lender shall promptly notify the
Company of such Tax Credit. The Lender shall use commercially reasonable
efforts to take such action as, in the sole reasonable discretion of the
Lender, is then practicable under the circumstances to give the benefit of
such Tax Credit to the Company.
(h) The Company shall be permitted to replace any Lender that
(i) requests reimbursement for amounts owing pursuant to subsection 2.12(a)
or 2.14 or (ii) defaults in its obligation to make Loans hereunder, with a
replacement financial institution; provided that (A) such replacement does
not conflict with any Requirement of Law, (B) no Event of Default shall
have occurred and be continuing at the time of such replacement, (C) prior
to any such replacement, such Lender shall have taken no action under
subsection 2.12(f) so as to eliminate the continued need for payment of
amounts owing pursuant to subsection 2.12(a) or 2.14, (D) the replacement
financial institution shall purchase, at par, all Loans and other amounts
owing to such replaced Lender on or prior to the date of replacement, (E)
the Company shall be liable to such replaced Lender under subsection 2.15
if any Eurodollar Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (F) the
replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (G) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of subsection 9.6 (provided that the Company shall be obligated
to pay the registration and processing fee referred to therein), (H) until
such time as such replacement shall be consummated, the Company shall pay
all additional amounts (if any) required pursuant to subsection 2.12(a) or
2.14, as the case may be, and (I) any such replacement shall not be deemed
to be a waiver of any rights that the Company, the Administrative Agent or
any other Lender shall have against the replaced Lender.
23
(i) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.13 Illegality. Notwithstanding any other provisions herein,
if any Requirement of Law or any change therein or in the interpretation or
application thereof shall make it unlawful for any Lender to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Alternate
Base Rate Loans on the respective next succeeding Interest Payment Date(s)
for such Loans or within such earlier period as required by law. The
Company hereby agrees promptly to pay any Lender, upon its demand, any
additional amounts necessary to compensate such Lender for any costs
incurred by such Lender in making any conversion in accordance with this
subsection 2.13 including, but not limited to, any interest or fees payable
by such Lender to lenders of funds obtained by it in order to make or
maintain its Eurodollar Loans hereunder (such Lender's notice of such
costs, as certified to the Company through the Administrative Agent, to be
conclusive absent manifest error).
2.14 Requirements of Law. Subject to subsection 2.12:
(a) In the event that any Requirement of Law or any change
therein or in the interpretation or application thereof or compliance by
any Lender with any request or directive (whether or not having the force
of law) from any central bank or other Governmental Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loans made by
it, or change the basis of taxation of payments to such Lender of
principal, fees, interest or any other amount payable hereunder (except for
changes in the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Lender which are not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making, renewing or maintaining advances or extensions of credit
or to reduce any amount receivable hereunder, in each case, in respect of
its Eurodollar Loans, then, in any such case, the Company shall promptly
pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such
Lender with respect to such Eurodollar Loans. If a Lender becomes entitled
to claim any additional amounts pursuant to this subsection, it shall
promptly notify the Company, through the Administrative Agent, of the event
by reason of which it has become so entitled.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule or regulation regarding capital adequacy, or any
change therein or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with
24
any request or directive regarding capital adequacy (whether or not having
the force of law) from any central bank or Governmental Authority, does or
shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder to
a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, within 15 days after demand by such Lender, the Company
shall pay to such Lender such additional amount as shall be requested by
such Lender as being required to compensate it for such reduction.
(c) A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender (with a copy to the
Administrative Agent) to the Company shall be conclusive in the absence of
manifest error. This subsection 2.14 shall survive the termination of this
Agreement and payment of the Loans and all other amounts payable hereunder.
2.15 Indemnity. The Company agrees to indemnify each Lender
and to hold such Lender harmless from any loss or expense which such Lender
may sustain or incur as a consequence of (a) default by the Company in
payment of the principal amount of or interest on any Eurodollar Loans of
such Lender, including, but not limited to, any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its Eurodollar Loans hereunder,
(b) default by the Company in making a borrowing after the Company has
given a notice in accordance with subsection 2.1(d) or 2.2(b)(iv)(B),
including, but not limited to, any such loss or expense arising from
interest or fees payable by such Lender to lenders of funds obtained by it
to make or maintain its Eurodollar Loans hereunder and (c) default by the
Company in making any prepayment after the Company has given a notice in
accordance with subsection 2.7 or (d) a prepayment, voluntary or
involuntary, of a Eurodollar Loan on a day which is not the last day of an
Interest Period with respect thereto, including, but not limited to, any
such loss or expense arising from interest or fees payable by such Lender
to lenders of funds obtained by it in order to maintain its Eurodollar
Loans hereunder. This subsection 2.15 shall survive termination of this
Agreement and payment of the Loans and all other amounts payable hereunder.
2.16 Increase of Loan Commitments. The Company may from time
to time, by notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders), request that the Aggregate Loan
Commitments be increased by an amount that is not less than $50,000,000 and
will not result in the Aggregate Loan Commitments exceeding $750,000,000.
Each such notice shall set forth the requested amount of the increase in
the Aggregate Loan Commitments and the date on which such increase is to
become effective (which shall be not fewer than twenty days after the date
of such notice), and shall offer each Lender the opportunity to increase
its Combined Loan Commitments by its ratable share, based on the percentage
(determined on the date of such notice) which such Lender's Combined Loan
Commitments constitutes of the Aggregate Loan Commitments, of the requested
increase in the aggregate amount of the Loan Commitments. Each Lender
shall, by notice to the Company and the Administrative Agent given not more
than ten Business Days after the date of the Company's notice, either agree
to increase its Combined Loan Commitments by all or a portion of the
offered amount or decline to increase its Combined Loan Commitments (and
any Lender that does not deliver such a notice within such period of ten
Business Days shall be deemed to have declined to increase its Combined
Loan Commitments). In the event that, on the tenth Business Day after the
25
Company shall have delivered a notice pursuant to the first sentence of
this paragraph, the Lenders shall have agreed pursuant to the preceding
sentence to increase their respective Combined Loan Commitments by an
aggregate amount less than the increase in the Aggregate Loan Commitments
requested by the Company, the Company shall have the right to arrange for
one or more banks or other financial institutions (any such bank or other
financial institution being called an "Augmenting Lender"), which may
include any Lender, to extend Combined Loan Commitments or increase their
existing Combined Loan Commitments in an aggregate amount equal to the
unsubscribed amount, provided that each Augmenting Lender, if not already a
Lender hereunder, shall be subject to the approval of the Administrative
Agent (which approval shall not be unreasonably withheld or delayed) and
shall execute all such documentation as the Administrative Agent shall
specify to evidence its status as a Lender hereunder. If (and only if)
Lenders (including Augmenting Lenders) shall have agreed to increase their
respective Combined Loan Commitments or to extend new Combined Loan
Commitments in an aggregate amount not less than $50,000,000, such
increases and such new Combined Loan Commitments shall become effective on
the date specified in the notice delivered by the Company pursuant to the
first sentence of this Section. Any increase in the Aggregate Loan
Commitments effected pursuant to this Section shall be allocated between
this Agreement and the Other Agreements as substantially ratably as
possible based on the respective amounts of the Loan Commitments and the
Loan Commitments (as defined therein) under the Other Agreements. If, on
the effective date of any increase in the Aggregate Loan Commitments
pursuant to this Section, any Loans shall be outstanding, the Company shall
on such date prepay all such Loans, and, if it wishes to reborrow all or a
portion of such Loans so prepaid, such borrowing shall be made in
accordance with the terms and conditions of this Agreement from the Lenders
in accordance with their respective Loan Commitments after giving effect to
such increase.
2.17 Extension of Termination Date. On or before the date
which is 45 days (but no more than 60 days) prior to the then-existing
Termination Date, the Company may make a request to the Administrative
Agent (which shall promptly notify each Lender of its receipt of such
request) on behalf of the Lenders for an extension of the then-existing
Termination Date to the date 364 days after the then-existing Termination
Date.
(b) In the case of each requested extension, each Lender shall
promptly (and in no case later than the date (the "Decision Date") 30 days
prior to the then-existing Termination Date) notify the Administrative
Agent as to whether or not in such Lender's sole discretion such Lender
consents to such extension. The Administrative Agent shall notify the
Borrower on the Business Day immediately following such Decision Date as to
which Lenders shall have consented to such request and which Lenders shall
not have consented to such request (any Lender not providing any notice to
the Administrative Agent by the Decision Date being deemed not to have
consented to such request). The then-existing Termination Date shall be
extended only if (i) Lenders having Loan Commitments aggregating at least
75% of the total Loan Commitments consent and (ii) either (A) all non-
consenting Lenders have been replaced by replacement banks or other
financial institutions in accordance with the provisions of subsection 9.6
hereof such that the aggregate amount of Loan Commitments is not reduced or
(B) in the event that not all non-consenting Lenders have been replaced,
the Company notifies the Administrative Agent that it wishes to extend the
then-existing Termination Date notwithstanding the reduced amount of
aggregate Loan Commitments and each consenting Lender and each replacement
bank or other financial institution in its sole discretion consents to such
26
extension after receiving notice of such reduced amount of aggregate Loan
Commitments; provided, that the Termination Date shall be extended pursuant
to this subsection 2.17 no more than twice. In the event that the then-
existing Termination Date is extended pursuant to clause (ii)(B) of the
preceding sentence, on the then-existing Termination Date the Company shall
pay to the Administrative Agent, for the benefit of each non-consenting
Lender that is not replaced with a replacement bank or other financial
institution, all amounts due with respect to such non-consenting Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans herein provided for, the Company
hereby represents and warrants to the Administrative Agent and to each
Lender that:
3.1 Financial Condition. The consolidated balance sheets of
the Company and its consolidated Subsidiaries as at December 31, 2000 and
December 31, 2001 and the related consolidated statements of income and
stockholders' equity and of cash flow for the fiscal years ended on such
dates, reported on by PricewaterhouseCoopers LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition
of the Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position
for the fiscal years then ended. The unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at March 31, 2002 and
the related unaudited consolidated statements of income and cash flow for
the three-month period ended on such date, copies of which have heretofore
been furnished to each Lender, are complete and correct in all material
respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and cash flow for the three-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout
the periods involved. Neither the Company nor any of its consolidated
Subsidiaries had on March 31, 2002 any material Guarantee Obligation,
contingent liabilities or liability for taxes, long-term lease or unusual
forward or long-term commitment, which is not reflected in the unaudited
consolidated balance sheet as at March 31, 2002 or in the notes thereto.
3.2 No Change. Since December 31, 2001 there has been no
material adverse change in the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
3.3 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (b)
has the corporate power and authority and the legal right to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and where the
failure to be so qualified would have a material adverse effect upon the
business operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole and (d) is in compliance with
all Requirements of Law except to the extent that the failure to comply
27
therewith could not, in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole and
could not materially adversely affect the ability of the Company to perform
its obligations under this Agreement.
3.4 Corporate Power; Authorization; Enforceable Obligations.
The Company has the corporate power and authority and the legal right to
make, deliver and perform this Agreement and any Note and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize
the execution, delivery and performance of this Agreement and any Note. No
consent or authorization of, filing with or other act by or in respect of
any Governmental Authority is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any Note. This Agreement has been, and
any Note will be, duly executed and delivered on behalf of the Company.
This Agreement constitutes, and any Note when executed and delivered will
constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of
this Agreement and any Note, the borrowings hereunder and the use of the
proceeds thereof, will not violate any Requirement of Law or any
Contractual Obligation of the Company or of any of its Subsidiaries, and
will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company
or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to this Agreement or any Note or
any of the transactions contemplated hereby, or (b) which could reasonably
be expected to have a material adverse effect on the business, operations,
property or financial or other condition of the Company and its
Subsidiaries taken as a whole.
3.7 No Default. Neither the Company nor any of its
Subsidiaries is in default in any material respect under or with respect to
any Contractual Obligation which could reasonably be expected to be
materially adverse to the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole or
which could materially adversely affect the ability of the Company or any
Subsidiary to perform its obligations under this Agreement and any Note.
No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all its real property which is material to the
Company and its Subsidiaries, and good title to all its other property
which is material to the Company and its Subsidiaries, and none of such
property is subject to any Lien of any nature whatsoever which is
prohibited by subsection 6.1 hereof.
28
3.9 No Burdensome Restrictions. No Contractual Obligation of
the Company or any of its Subsidiaries and no Requirement of Law materially
adversely affects, or insofar as the Company may reasonably foresee may so
affect, the business, operations, property or financial or other condition
of the Company and its Subsidiaries taken as a whole.
3.10 Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all material tax returns which to the reasonable
knowledge of the Company are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessment made
against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of
the Company or its Subsidiaries, as the case may be, or which are otherwise
individually or in the aggregate not material); and no tax liens have been
filed and, to the reasonable knowledge of the Company, no claims are being
asserted with respect to any such taxes, fees or other charges.
3.11 Federal Regulations. No part of the proceeds of any Loans
hereunder will be used for the purpose, whether immediate, incidental, or
ultimate, of purchasing any Margin Stock of any corporation or carrying any
Margin Stock of any corporation, or for any purpose which violates
Regulation U of the Board of Governors of the Federal Reserve System, or
which would be inconsistent with or violate, the provisions of any of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, the Company will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.12 ERISA. None of the Company, any of its Subsidiaries or
any Commonly Controlled Entity has incurred any material liability related
to the withdrawal from any Multiemployer Plan or the termination of any
Single Employer Plan. The withdrawal by the Company or any of its
Subsidiaries or any Commonly Controlled Entity from all Multiemployer Plans
in which they participate would not have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole. The Company has not been
notified that any Multiemployer Plan to which the Company, any of its
Subsidiaries or any Commonly Controlled Entity contributes is either in
Reorganization or Insolvent. All Single Employer Plans maintained by the
Company, any of its Subsidiaries or any Commonly Controlled Entity are in
material compliance with all applicable Requirements of Law. The sum of
the present value of all accrued benefits vested under all Single Employer
Plans maintained by the Company or any of its Subsidiaries or any Commonly
Controlled Entity (based on assumptions used to fund such Plans) did not,
as of December 31, 2001, exceed the value of the assets of such Plans
allocable to such vested benefits.
3.13 Investment Company Act. The Company is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
3.14 Subsidiaries. All of the Subsidiaries of the Company at
the date hereof are set forth on Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Loans shall be used
by the Company for general corporate purposes.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The obligation of each Lender
to make an initial Loan hereunder is subject to the satisfaction of the
following conditions precedent:
(a) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, an opinion of Xxxxx X.
Xxxxxxx, Executive Vice President, Secretary of the Company, dated the
Closing Date and addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit F. Such opinion shall also cover such
other matters incident to the transactions contemplated by this Agreement
as the Administrative Agent or any Lender shall reasonably require.
(b) Officer's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, an Officer's Certificate of
the Company dated the Closing Date, substantially in the form of Exhibit G,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent and its counsel, executed by the
President or Vice President and the Secretary or Assistant Secretary of the
Company.
(c) Secretary's Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of the
Secretary or Assistant Secretary of the Company dated the Closing Date,
substantially in the form of Exhibit H, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative Agent
and its counsel.
(d) Compliance. Each of the Lenders shall have determined that
the making of such Loan and the use of the proceeds thereof will not
violate any Regulation of the Board of Governors of the Federal Reserve
System, and each Lender shall have received such documents and information
(including without limitation, a duly completed and signed Form U-1) as
such Lenders shall require to make such determination.
(e) Existing Credit Agreement. All principal, interest and
fees under the Existing Credit Agreement through the Closing Date shall
have been paid, and all commitments to lend thereunder shall have been
terminated.
(f) Fees. All fees payable to the Administrative Agent or any
Lender on the Closing Date shall have been paid.
(g) 4-Year Credit Agreement. The 4-Year Credit Agreement shall
have been executed and delivered by the Company and all other parties
thereto.
(h) Amendment to 5-Year Credit Agreement. There shall have
become effective an amendment to the 5-Year Credit Agreement which conforms
the provisions of subsection 2.4(b) thereof to the provisions of subsection
2.4(b) of this Agreement.
(i) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders and their counsel.
4.2 Conditions to All Loans. The obligation of each Lender to
make any Loan (including the initial Loan to be made by it hereunder) to be
made by it hereunder is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date:
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(a) Representations and Warranties. The representations and
warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection herewith (except the representation and warranty set
forth in subsection 3.2 and except, in the case of a Refunding Borrowing,
the representations and warranties set forth in subsections 3.2, 3.5, 3.6,
3.7, 3.8, 3.9, 3.10, 3.12 and 3.14) shall be correct on and as of the
Borrowing Date as if made on and as of such date.
(b) No Default or Event of Default. In the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing on the
date of such Loan after giving effect to the Loans to be made on such date,
and, in the case of any other Loan, no Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the
Loan to be made on such Borrowing Date.
(c) Additional Conditions to Competitive Loans. If such Loan
is made pursuant to subsection 2.2, all conditions set forth in such
subsection shall have been satisfied.
Each borrowing by the Company hereunder shall constitute a representation
and warranty by the Company as of the date of such borrowing that the
conditions in clauses (a), (b) and (c) of this subsection have been
satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments
remain in effect, any Loan remains outstanding and unpaid or any other
amount is owing to any Lender or the Administrative Agent hereunder, the
Company shall and, in the case of the agreements set forth in subsections
5.3, 5.4, 5.5 and 5.6, shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
stockholders' equity and of cash flow for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Company, the unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income and
cash flow of the Company and its consolidated Subsidiaries for such
quarterly period setting forth in each case in comparative form the figures
for the comparable quarter of the previous year in the case of the
consolidated statements of income and the end of the immediately preceding
fiscal year in the case of the consolidated balance sheet, certified by the
chief financial officer of the Company (subject to normal year-end audit
adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein (except
31
as approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and (b) above, a certificate of a
Responsible Officer (i) stating that, to the best of such officer's
knowledge, the Company during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition,
contained in this Agreement and in any Note to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate, and
(ii) showing in detail the calculations supporting such statement in
respect of subsections 6.3 and 6.4;
(c) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of all
financial statements and reports which the Company may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(d) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case
may be, all its obligations of whatever nature, except when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Company or its Subsidiaries, as the case
may be.
5.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to subsection 6.2; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property or financial or other condition of the Company and its
Subsidiaries taken as a whole.
5.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance
on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
32
engaged in the same or a similar business; and furnish to each Lender, upon
written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made
of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books
and records at any reasonable time and as often as may reasonably be
desired, and to discuss the business, operations, properties and financial
and other conditions of the Company and its Subsidiaries with officers and
employees of the Company and its Subsidiaries and with its independent
certified public accountants.
5.7 Notices. Promptly give notice to the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any default or event of default under any material
Contractual Obligation of the Company or any of its Subsidiaries;
(c) of any litigation, investigation or proceeding which may
exist at any time between the Company or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if adversely
determined, as the case may be, would have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole;
(d) of any litigation or proceeding affecting the Company or
any of its Subsidiaries in which (i) the amount involved is $50,000,000 or
more and not covered by insurance or (ii) injunctive or similar relief is
sought which if adversely determined would have a material adverse effect
on the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole;
(e) of the following events, as soon as possible and in any
event within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or (ii) the institution of proceedings or the taking
or expected taking of any other action by PBGC or the Company or any
Commonly Controlled Entity to terminate or withdraw or partially withdraw
from any Plan and, with respect to a Multiemployer Plan, the Reorganization
(as defined in Section 4241 of ERISA) or Insolvency (as defined in Section
4245 of ERISA) of such Plan and in addition to such notice, deliver to the
Administrative Agent and each Lender whichever of the following may be
applicable: (A) a certificate of a Responsible Officer setting forth
details as to such Reportable Event and the action that the Company or
Commonly Controlled Entity proposes to take with respect thereto, together
with a copy of any notice of such Reportable Event that may be required to
be filed with PBGC, or (B) any notice delivered by PBGC evidencing its
intent to institute such proceedings or any notice to PBGC that such Plan
is to be terminated, as the case may be; and
(f) of a material adverse change in the business, operations,
property or financial or other condition of the Company and its
Subsidiaries taken as a whole.
33
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred
to therein and stating what action the Company proposes to take with
respect thereto. For all purposes of clause (e) of this subsection, the
Company shall be deemed to have all knowledge or knowledge of all facts
attributable to the administrator of such Plan.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments
remain in effect, any Loan remains outstanding and unpaid or any other
amount is owing to any Lender or the Administrative Agent hereunder, the
Company shall not, nor in the case of the agreements set forth in
subsections 6.1 or 6.2 shall it permit any of its Subsidiaries to, directly
or indirectly:
6.1 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its properties or assets, whether now owned or
hereafter acquired, except:
(a) Liens existing on the date hereof which are described in
Schedule 6.1 hereto;
(b) Liens created in favor of the Administrative Agent, for the
ratable benefit of the Lenders;
(c) Liens for taxes or assessments either (i) not yet
delinquent or (ii) the validity of which is being contested in good faith
and as to which any reserves required by GAAP have been set aside;
(d) deposits or pledges to secure the payment of workmen's
compensation, unemployment insurance or other social security benefits or
obligations, or to secure the performance of bids, trade contracts, leases,
public or statutory obligations, surety or appeal bonds or other
obligations of a like nature incurred in the ordinary course of business;
(e) materialmen's, mechanics', workmen's, repairmen's,
employees', or other like Liens either (i) arising in the ordinary course
of business and securing obligations not more than 90 days overdue or (ii)
being contested in good faith and as to which any reserves required by GAAP
have been set aside or as to which adequate bonds have been obtained;
(f) minor defects, easements, exceptions, reservations and
irregularities in the title to real property which do not, in the
aggregate, materially impair the use of such property for the purposes for
which it is or may reasonably be expected to be held;
(g) Liens on assets, each of which Liens (i) existed on such
assets before the time of their acquisition by the Company or such
Subsidiary, or (ii) existed on such assets of any Subsidiary before the
time it became a Subsidiary, or (iii) was created solely for the purpose of
securing, and was created substantially contemporaneously with the
incurring of, Indebtedness representing, or incurred to finance, the cost
of such assets; provided that, with respect to Liens referred to in clause
(iii), (A) such Liens shall at all times be confined to the assets so
acquired and improvements, alterations, replacements and modifications
thereto and (B) the principal amount of the Indebtedness secured by such
Liens shall in no case exceed 100% of the lesser of the cost or the fair
market value of the assets subject thereto at the time of acquisition
thereof, and provided, further that with respect to each Lien referred to
in this paragraph (g), any extension, renewal or replacement thereof shall
34
be permitted only to the extent that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement; and
(h) Liens not otherwise permitted by this subsection 6.1 so
long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Company and all Subsidiaries) 5% of Consolidated
Total Assets at any time.
6.2 Limitation on Mergers and Sales of Assets. Consolidate or
merge with or into, or sell, convey, transfer or lease in a single
transaction or in a series of related transactions any substantial part of
the assets of the Company and its consolidated Subsidiaries taken as a
whole to, any other Person, except (i) any such consolidation, merger,
sale, conveyance, transfer or lease when the only parties to such
transaction or series of transactions are one of its Subsidiaries and one
or more of its other Subsidiaries, (ii) any such sale, conveyance, transfer
or lease to the Company by one or more of its Subsidiaries and (iii) the
merger or consolidation of the Company with another corporation, provided
that the Company is the surviving corporation and that, after giving effect
to such consolidation or merger, no Default or Event of Default has
occurred and is continuing.
(b) Convey, transfer or lease, or sell and lease-back, any
significant fixed asset used or useable in its business or the shares of
the capital stock of any Subsidiary, except (i) to the Company by any of
its Subsidiaries or to any of the Company's Subsidiaries by one or more of
its other Subsidiaries, (ii) for a sale or conveyance of such a fixed asset
in connection with the replacement thereof or in the ordinary course of
business or (iii) if such conveyance, transfer, lease or sale is for fair
value as determined by the Board of Directors or any executive officer of
the Company and not materially adverse to the Lenders.
6.3 Maintenance of Ratio of Consolidated Total Indebtedness to
Annualized Consolidated Cash Flow. Permit the ratio of Consolidated Total
Indebtedness to Annualized Consolidated Cash Flow as at the last day of any
fiscal quarter of the Company to exceed 2.50 to 1.00.
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow
to Annualized Consolidated Interest Expense. Permit the ratio of (a)
Annualized Consolidated Cash Flow as at the end of any fiscal quarter of
the Company to (b) Annualized Consolidated Interest Expense as at the end
of such fiscal quarter, to be less than 2.0 to 1.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay (i) any principal of any Loan
when due in accordance with the terms thereof or (ii) any interest on any
Loan, or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Company herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
35
with this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance
of any agreement contained in Section 6; or
(d) The Company shall default in any material respect in the
observance or performance of any other agreement contained in this
Agreement, and such default shall continue unremedied for a period of 30
days; or
(e) The Company or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness for more than
$2,000,000 (other than the Loans) or in the payment of any Guarantee
Obligation in excess of $2,000,000 beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, if such default
or other event or condition causes, or permits the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
(f) (i) The Company or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Company or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Company or any of its Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Company or any of its Subsidiaries any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) the Company or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) the Company or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
36
respect to any Plan, (iii) a Reportable Event shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or institution of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, and, in the case of a Reportable Event, the continuance of such
Reportable Event unremedied for ten days after notice of such Reportable
Event pursuant to Section 4043(a), (c) or (d) of ERISA is given and, in the
case of the institution of proceedings, the continuance of such proceedings
for ten days after commencement thereof, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) any of the Company,
any of its Subsidiaries or any commonly controlled entity shall incur
material liability relating to the withdrawal from any Multiemployer Plan
or the termination of any Single Employer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Single Employer Plan;
provided, that in the case of each of clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if
any, could subject the Company or any of its Subsidiaries to any tax,
penalty or other liabilities that in the aggregate would be material in
relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (to the extent not paid or covered by insurance) of $50,000,000
or more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 90 days from the entry
thereof; or
(i) (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than members of the Xxxxxxxx family or any
trusts for their benefit, shall become, or obtain rights (whether by means
or warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of shares of Capital Stock representing more than 35% of the
total voting power of the Company, or (ii) the board of directors of the
Company shall cease to consist of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically the
Loan Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
and any Note shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Company declare the Loan
Commitments to be terminated forthwith, whereupon the Loan Commitments
shall immediately terminate; and (ii) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice of default to the
Company, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and any Note to be due and
payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 8. THE ADMINISTRATIVE AGENT
37
8.1 Appointment. The Lenders from time to time party to this
Credit Agreement, whether as original signatories or as Purchasing Lenders
pursuant to subsection 9.6, hereby irrevocably designate and appoint
JPMorgan Chase Bank as the Administrative Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes JPMorgan Chase Bank,
as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers
and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or attorneys-
in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-
fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Company
or any officer thereof contained in this Agreement or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Note or for any
failure of the Company to perform its obligations hereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect
the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and any Note in accordance with a request of
38
the Required Lenders, or all the Lenders where unanimity is required
pursuant to subsection 9.1, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Company referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice
of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders, or all the Lenders where unanimity is required pursuant to
subsection 9.1; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent, Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent that it has, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Company and made
its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other
condition or creditworthiness of the Company which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Company and without limiting the obligation of the Company to do
so), ratably according to the respective amounts of their original Loan
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including
without limitation at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted by the Administrative Agent under or
39
in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as
though the Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual
capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall be approved by
the Company, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this subsection 8.9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
8.10 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the Required
Lenders, the Administrative Agent and the Company may, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or any Note or changing
in any manner the rights of the Lenders or of the Company hereunder or
thereunder or waiving, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the requirements of this
Agreement or any Note or any Default or Event of Default and its
consequences; provided, however, that (i) such amendments, supplements or
modifications may only be made pursuant to this subsection 9.1 and (ii) no
such waiver and no such amendment, supplement or modification shall (a)
extend the maturity of any Loan (except in connection with an extension of
the Termination Date in accordance with subsection 2.17), or reduce the
rate or extend the time of payment of interest thereon, or reduce any fee
payable to the Lenders hereunder, or reduce the principal amount of any
Loan, or increase the amount or extend the expiration date of any Lender's
Loan Commitment or amend, modify or waive any provision of this subsection
or reduce the percentage specified in the definition of Required Lenders,
40
or consent to the assignment or transfer by the Company of any of its
rights and obligations under this Agreement, in each case without the
written consent of each Lender affected thereby, (b) amend, modify or waive
any provision of Section 8 without the written consent of the then
Administrative Agent or (c) amend subsection 2.17 without the written
consent of all the Lenders. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and
shall be binding upon the Company, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the
Company, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under any Notes, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, including by
telecopy, and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered by hand, or when deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and the
Administrative Agent, and as set forth in Schedule 9.2 in the case of the
other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the Loans:
The Company: Dow Xxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxx
Facsimile: 000-000-0000
The Administrative Agent: JPMorgan Chase Bank
Agent Bank Services Group
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
with copy to: JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.1(d), 2.2, 2.5 and 2.7 shall
not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges provided
by law.
41
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-
pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and any Notes and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, any Notes and any such other documents,
including, without limitation, reasonable fees and disbursements of counsel
to the Administrative Agent and to the several Lenders, (c) to pay,
indemnify, and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of
the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, any Notes and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever arising out of the execution, delivery, enforcement,
performance and administration of this Agreement, or the use by the Company
of the proceeds of the Loans (including, without limitation, any such use
that would result in a violation of Regulation U or X of the Board of
Governors of the Federal Reserve System) (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the
Company shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. The agreements in this subsection 9.5 shall
survive repayment of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing
Lenders. This Agreement shall be binding upon and inure to the benefit
of the Company, the Lenders, the Administrative Agent, all future holders
of the Loans, and their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Loan Commitment of such
Lender or any other interest of such Lender hereunder or under any Note.
In the event of any such sale by a Lender of participating interests to a
42
Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and any
Note, and the Company and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and any Note. In no event
shall any Participant under any such participation 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 the Company therefrom, except to
the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Loans or any fees payable hereunder, or
postpone the date of the final maturity of the Loans, in each case to the
extent subject to such participation. The Company agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence
of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
subsection 9.7(a) as fully as if it were a Lender hereunder. The Company
also agrees that each Participant shall be entitled to the benefits of
subsections 2.12, 2.13, 2.14, 2.15 and 9.5 with respect to its
participation in the Loan Commitments and the Loans outstanding from time
to time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such subsections than the transferor Lender
would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had
no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any
time assign to one or more banks or other entities ("Competitive Loan
Assignees") any Competitive Loan owing to such Lender and any Note held by
such Lender evidencing such Competitive Loan, pursuant to a Competitive
Loan Assignment executed by the assignor Lender and the Competitive Loan
Assignee. Upon such execution, from and after the date of such Competitive
Loan Assignment, the Competitive Loan Assignee shall, to the extent of the
assignment provided for in such Competitive Loan Assignment, be deemed to
have the same rights and benefits of payment and enforcement with respect
to such Competitive Loan and any such Note and the same rights of setoff
and obligation to share pursuant to subsection 9.7 as it would have had if
it were a Lender hereunder; provided, that unless such Competitive Loan
Assignment shall otherwise specify and a copy of such Competitive Loan
Assignment shall have been delivered to the Administrative Agent for its
acceptance and recording in the Register in accordance with subsection
9.6(f), the assignor thereunder shall act as collection agent for the
Competitive Loan Assignee thereunder, and the Administrative Agent shall
pay all amounts received from the Company which are allocable to the
assigned Competitive Loan and Note, if any, directly to such assignor
without any further liability to such Competitive Loan Assignee. A
Competitive Loan Assignee under a Competitive Loan Assignment shall not, by
virtue of such Competitive Loan Assignment, become a party to this
Agreement or have any rights to consent to or refrain from consenting to
any amendment, waiver or other modification of any provision of this
Agreement or any related document; provided, no Competitive Loan Assignee
shall be entitled to receive any greater amount than the Lender would have
been entitled to receive in respect of the amount of the Competitive Loan
43
Assignment by such Lender to such Competitive Loan Assignee had no such
assignment occurred; provided, further, that (x) the assignor under such
Competitive Loan Assignment and such Competitive Loan Assignee may, in
their discretion, agree between themselves upon the manner in which such
assignor will exercise its rights under this Agreement and any related
document, and (y) if a copy of such Competitive Loan Assignment shall have
been delivered to the Administrative Agent for its acceptance and recording
in the Register in accordance with subsection 9.6(f), neither the principal
amount of, the interest rate on, nor the maturity date of any Competitive
Loan and Note, if any, assigned to the Competitive Loan Assignee thereunder
will be modified without the written consent of such Competitive Loan
Assignee. If a Competitive Loan Assignee has caused a Competitive Loan
Assignment to be recorded in the Register in accordance with subsection
9.6(f), such Competitive Loan Assignee may thereafter, in the ordinary
course of its business and in accordance with applicable law, assign such
Competitive Loan and Note, if any, to any Lender, to any affiliate or
subsidiary of such Competitive Loan Assignee or to any other financial
institution that has total assets in excess of $1,000,000,000 and that in
the ordinary course of its business extends credit of the same type as such
Competitive Loan, and the foregoing provisions of this paragraph (c) shall
apply, mutatis mutandis, to any such assignment by a Competitive Loan
Assignee. Except in accordance with the preceding sentence, Competitive
Loans and any related Notes may not be further assigned by a Competitive
Loan Assignee, subject to any legal or regulatory requirement that the
Competitive Loan Assignee's assets must remain under its control.
(d) Any Lender may, in accordance with applicable law, at any
time and from time to time sell to any other Lender or any affiliate
thereof all or any part of such transferor Lender's rights and obligations
under this Agreement (other than its rights with respect to Competitive
Loans, assignment of which shall be governed by paragraph (c) above)
pursuant to an Assignment and Acceptance, executed by such purchasing
Lender and such transferor Lender and delivered to the Administrative Agent
for its acceptance and recording in the Register. In addition, with the
consent of the Company and the Administrative Agent (which in each case
shall not be unreasonably withheld), any Lender may, in accordance with
applicable law, at any time and from time to time sell to one or more
additional banks, financial institutions or other entities that are not
then Lenders or affiliates thereof (together with purchasing Lenders
pursuant to the preceding sentence (including, without limitation, any
affiliate through which Loans were not previously booked), each a
"Purchasing Lender"), all or any part of its rights and obligations under
this Agreement pursuant to an Assignment and Acceptance, executed by such
Purchasing Lender, such transferor Lender, the Company and the
Administrative Agent, and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that no such assignment
to a Purchasing Lender (other than any Lender or any affiliate of any
Lender) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests
under this Agreement), unless otherwise agreed by the Company and the
Administrative Agent. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be a
party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Loan
Commitment as set forth therein, and (y) the transferor Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to be
a party hereto). Notwithstanding any provision of this subsection 9.6, the
44
consent of the Company shall not be required for any assignment that occurs
when an Event of Default pursuant to subsection 7(f) shall have occurred
and be continuing with respect to the Company. Such Assignment and
Acceptance shall be deemed to amend this Agreement to the extent, and only
to the extent, necessary to reflect the addition of such Purchasing Lender
and the resulting adjustment of Commitment Percentages arising from the
purchase by such Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Agreement.
(e) The Administrative Agent shall, on behalf of the Company,
maintain at its address referred to in subsection 9.2 a copy of each
Competitive Loan Assignment and each Assignment and Acceptance delivered to
it and a register (the "Register") for the recordation of (i) the names and
addresses of the Lenders and the Loan Commitment of, and principal amount
and stated interest of the Loans owing to, each Lender from time to time,
and (ii) with respect to each Competitive Loan Assignment delivered to the
Administrative Agent, the name and address of the Competitive Loan Assignee
and the principal amount and stated interest of each Competitive Loan owing
to such Competitive Loan Assignee. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan and any Notes evidencing
the Loans recorded therein for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered
on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the designated Assignee. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of a Competitive Loan Assignment executed
by an assignor Lender and a Competitive Loan Assignee, together with
payment from the assignor or assignee Lender to the Administrative Agent of
a registration and processing fee of $2,000.00, the Administrative Agent
shall promptly accept such Competitive Loan Assignment, record the
information contained therein in the Register and give notice of such
acceptance and recordation to the assignor Lender, the Competitive Loan
Assignee and the Company. Upon its receipt of an Assignment and Acceptance
executed by a transferor Lender and a Purchasing Lender (and, in the case
of a Purchasing Lender that is not then a Lender or an affiliate thereof,
by the Company and the Administrative Agent) together with payment from the
assignor or assignee Lender to the Administrative Agent of a registration
and processing fee of $4,000.00, the Administrative Agent shall promptly
accept such Assignment and Acceptance and promptly record the information
contained therein and the effective date determined pursuant thereto in the
Register.
(g) The Company authorizes each Lender to disclose to any
Participant, Competitive Loan Assignee or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Company and its
affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Company in connection with such Lender's
credit evaluation of the Company and its affiliates prior to becoming a
party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 9.6 concerning assignments of Loans
45
and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge
or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
(i) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (h) above.
9.7 Adjustments; Set-off. If any Lender or Transferee (a
"benefitted Lender") shall at any time receive any payment of all or part
of its Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in clause (f) of Section 7,
or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such benefitted Lender shall purchase
for cash from the other Lenders such portion of each such other Lender's
Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Company agrees that each Lender so
purchasing a portion of another Lender's Loan may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Lender were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
the Company, any such notice being expressly waived by the Company to the
extent permitted by applicable law, upon the occurrence and continuance of
an Event of Default to set-off and apply against any indebtedness, whether
matured or unmatured, of the Company to such Lender, any amount owing from
such Lender to the Company, at or at any time after the happening of any of
the above mentioned events, and the aforesaid right of set-off may be
exercised by such Lender against the Company or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of the Company, or
against anyone else claiming through or against the Company or such trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off shall not have been exercised by such
Lender prior to the making, filing or issuance, or service upon such Lender
of, or of notice of, any such petition; assignment for the benefit of
creditors; appointment or application for the appointment of a receiver; or
issuance of execution, subpoena, order or warrant. Each Lender agrees
promptly to notify the Company and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and
application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and
46
the Administrative Agent.
9.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
9.10 Integration. This Agreement and any Notes represent the
agreement of the Company, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in any such Notes.
9.11 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
9.12 Submission To Jurisdiction; Waivers. (a) The Company
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
(b) THE COMPANY AND THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
DOW XXXXX & COMPANY, INC.
By: /s/Xxxxxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President, Finance and Controller
JPMORGAN CHASE BANK,
As Administrative Agent and as a Lender
By: /s/Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ Xxxxxx X. Xxxx
----------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
HSBC BANK USA
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President - 7222
LLOYDS TSB BANK PLC
By: /s/Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President,
Corporate Banking, USA H009
By: /s/Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President,
Corporate Banking, USA M067
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP
XXXXXXX XXXXX BANK USA
By:/s/ D. Xxxxx Xxxxx
---------------------
Name: D. Xxxxx Xxxxx
Title: Senior Credit Officer
THE BANK OF NEW YORK
By:/s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By:/s/ Xxxx Xxxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
SCHEDULE 1.1
=================================================================
Lender Loan Commitment
-----------------------------------------------------------------
JPMorgan Chase Bank $17,500,000.00
-----------------------------------------------------------------
FleetBoston $17,500,000.00
-----------------------------------------------------------------
Bank of New York $17,500,000.00
-----------------------------------------------------------------
Lloyds Bank $17,500,000.00
-----------------------------------------------------------------
Mellon Bank $17,500,000.00
-----------------------------------------------------------------
HSBC Bank $12,500,000.00
-----------------------------------------------------------------
Bank of Tokyo Mitsubishi $12,500,000.00
-----------------------------------------------------------------
Northern Trust $10,000,000.00
-----------------------------------------------------------------
Xxxxxxx Xxxxx $7,500,000.00
-----------------------------------------------------------------
Total $130,000,000.00
=================================================================
SCHEDULE 3.14
SUBSIDIARIES OF THE COMPANY
Name of Subsidiary
DJBI, LLC
Dow Xxxxx & Company (Australia) Pty Limited
Dow Xxxxx & Company (Schweiz) GmbH
Dow Xxxxx & Company (Singapore) Pte Limited
Dow Xxxxx AER Company, Inc.
Economic Research Company, Inc.
Dow Xxxxx XX Services, Inc.
Dow Xxxxx Broadcasting (Asia), Inc.
Dow Xxxxx Broadcasting (Europe), Inc.
Dow Xxxxx Broadcasting (USA), Inc.
Dow Xxxxx Business Portal Company, Inc.
Dow Xxxxx Canada, Inc.
Dow Xxxxx Consulting (Shanghai) Limited
Dow Xxxxx Information Publishing, Inc.
Dow Xxxxx Information Services International (HK) Ltd.
Dow Xxxxx International GmbH
Dow Xxxxx International Ltd.
Dow Xxxxx International Marketing Services, Inc.
Dow Xxxxx Italia Srl
Dow Xxxxx (Japan) X.X.
Xxx Xxxxx, X.X.
Dow Xxxxx Newsprint Company, Inc.
Dow Xxxxx Newswires Holdings, Inc.
Dow Xxxxx Printing Company (Asia), Inc.
Dow Xxxxx Publishing Company (Asia), Inc. (90% owned)
Dow Xxxxx Distribution Co. (Asia), Inc.
Dow Xxxxx Publishing Company (Europe), Inc.
The Wall Street Journal Europe S.P.R.L. (51% owned)
JV GmbH II (51% owned)
Dow Xxxxx Southern Holding Company, Inc.
Dow Xxxxx Ventures V, Inc.
Dow Xxxxx Ventures VI, Inc.
Dow Xxxxx Cash Management, Inc.
Xxxxxxx Newspapers, Inc.
Xxxxxxx Newspapers of Pennsylvania Holdings, Inc.
Xxxxxxx Newspapers of Pennsylvania, L.P.
Seacoast Newspapers, Inc.
Inquirer & Mirror, Inc.
Xxxxxxx Newspapers of Pennsylvania Management, Inc.
ONI National Publishing, Inc.
The Mail Tribune, Inc.
The Traverse City Record-Eagle, Inc.
The Santa Xxxx County Sentinel, Inc.
Federal Filings, Incorporated
National Delivery Service, Inc.
Review Publishing Company Limited
The China Phone Book Co., Ltd.
SCHEDULE 6.1
EXISTING LIENS
None.
SCHEDULE 9.2
Names and Addresses of Lenders
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: 212-270-1063
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Fleet National Bank
000 Xxxxxxx Xxxxxx. XX XX 00000X
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Lloyds TSB Bank plc
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Xxxx Xxxxxxx
Mellon Bank, N.A.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: D. Xxxxx Xxxxx
National Australia Bank Limited, A.C.N. 004044937
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: 000-000-0000
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
The Northern Trust Company
00 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
EXHIBIT A
FORM OF BORROWING NOTICE FOR REVOLVING CREDIT LOANS
Date:
JPMorgan Chase Bank, as Administrative Agent under the
Credit Agreement referred to below
Gentlemen:
Pursuant to subsection 2.1 of the 364-Day Credit Agreement, dated
as of June 24, 2002, among Dow Xxxxx & Company, Inc. (the "Company"), the
Lenders parties thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan
Bank), as Administrative Agent, , as Documentation Agent,
and and , as Co-Syndication Agents
(as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"), the Company hereby requests that the following
Revolving Credit Loans be made on [date] as follows:
(1). Total Amount of Revolving Credit Loans $
--------------
(2). Amount of (1) to be allocated to
Eurodollar Loans $
--------------
(3). Amount of (1) to be allocated to
Alternate Base Rate Loans $
--------------
(4).Interest Periods and amounts to be allocated
thereto in respect of Eurodollar Loans
(amounts must total (2)):
(i) one month $
--------------
(ii) two months $
--------------
(iii) three months $
--------------
(iv) six months $
--------------
Total Eurodollar Loans $
--------------
NOTE: EACH AMOUNT APPEARING IN EACH LINE ABOVE MUST BE AT LEAST EQUAL TO
$10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000.
The Company hereby certifies that the conditions set forth in Section 4.2
of the Credit Agreement have been satisfied.
2
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By:
-------------------------
Name:
Title:
EXHIBIT B
FORM OF COMPETITIVE LOAN REQUEST
---------, ----
JPMorgan Chase Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Credit Agreement, dated as of
June 24, 2002, among Dow Xxxxx & Company, Inc. (the "Company"), the Lenders
parties thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
Administrative Agent, , as Documentation Agent, and
and , as Co-Syndication Agents (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Competitive Loan Request pursuant
to subsection 2.2 of the Credit Agreement requesting quotes for the
following Competitive Loans:
Aggregate Principal Amount $ $ $
--------- --------- --------
Competitive Loan Date
--------- --------- --------
[Interest Period]*
----------------------
Maturity Date**
----------------------
Interest Payment Dates
-----------------------
Very truly yours,
DOW XXXXX & COMPANY, INC.
By:
-------------------------
Name:
Title:
Note: Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission. In
any case, a Competitive Loan Request shall contain the information
specified in the second paragraph of this form.
* Insert only in an Index Rate Competitive Loan Request.
** In an Index Rate Competitive Loan Request, insert last day of
Interest Period.
EXHIBIT C
FORM OF COMPETITIVE LOAN OFFER
----------, -----
JPMorgan Chase Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Credit Agreement, dated as of June 24,
2002, among Dow Xxxxx & Company, Inc. (the "Company"), the Lenders parties
thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
Administrative Agent, , as Documentation Agent, and
and , as Co-Syndication Agents (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned
Lender offers to make Competitive Loans thereunder in the following amounts
with the following maturity dates:
Competitive Loan Date: ----------, ----
Aggregate Maximum Amount: $
-----------
Maturity Date 1:
Maximum Amount $
---------------
Rate* Amount $
------ --------
Rate* Amount $
------ ---------
Maturity Date 2:
Maximum Amount $
--------
Rate* Amount $
------ ---------
Rate* Amount $
------ ---------
Maturity Date 3:
Maximum Amount $
--------------
Rate* Amount $
------ ---------
Rate* Amount $
------ ---------
Very truly yours,
[NAME OF OFFERING LENDER]
By:
------------------------
Name:
Title:
Telephone No.:
Fax No.:
* In the case of Index Rate Competitive Loans, insert margin bid. In
the case of Absolute Rate Competitive Loans, insert fixed rate bid.
EXHIBIT D
FORM OF COMPETITIVE LOAN CONFIRMATION
---------, ----
JPMorgan Chase Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Credit Agreement, dated as of June 24,
2002, among Dow Xxxxx & Company, Inc. (the "Company"), the Lenders parties
thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
Administrative Agent, , as Documentation Agent, and
and , as Co-Syndication Agents (as the same may be amended,
supplemented or otherwise modified, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned
accepts and confirms the offers by Competitive Loan Lender(s) to make
Competitive Loans to the undersigned on , [Competitive Loan Date]
under said subsection 2.2 in the (respective) amount(s) set forth on the
attached list of Competitive Loans offered.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By:----------------------
Name:
Title:
[Company to attach Competitive Loan offer list prepared by
Administrative Agent with accepted amount entered by the Company to right
of each Competitive Loan offer].
EXHIBIT E
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 364-Day Credit Agreement, dated as of
June 24, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among Dow Xxxxx & Company, Inc., a Delaware
corporation (the "Company"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders"), JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
Administrative Agent, , as Documentation Agent, and
and , as Co-Syndication Agents. Capitalized terms used herein
that are not defined herein shall have the meanings ascribed to them in the
Credit Agreement. (the "Non-U.S. Lender") is providing this
certificate pursuant to subsection 2.12(d) of the Credit Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by Notes in respect of which it
is providing this certificate;
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application
made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements; and
(c) the Non-U.S. Lender is acquiring an interest in the Loans or
Notes for its own account, and the Non-U.S. Lender will not hold
such an interest, directly or indirectly, for or on behalf of,
or as nominee for, any bank.
3. The Non-U.S. Lender meets all of the requirements under Code
Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of taxes on interest payments made to it under the Credit
Agreement, including without limitation that it is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code); and
4.The Non-U.S. Lender shall promptly notify the Company and the
Administrative Agent if any of the representations and warranties made
herein are no longer true and correct.
2
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
-----------------------
Name:
Title:
Date:
---------------------
EXHIBIT F
FORM OF OPINION OF XXXXX X. XXXXXXX
June 24, 2002
JPMorgan Chase Bank,
as Administrative Agent
under the Agreement, as
hereinafter defined,
Lloyds TSB Bank plc,
Mellon Bank, N.A.
as Co-Documentation Agent under
the Agreement,
The Bank of New York,
Fleet National Bank,
as Co-Syndication Agents
under the Agreement
and
Each of the Lenders parties to the
Agreement
Ladies and Gentlemen:
In my capacity as General Counsel, I have acted as counsel for
Dow Xxxxx & Company, Inc., a Delaware corporation (the "Company"), in
connection with the execution and delivery of the 364-Day Credit Agreement,
dated as of June 24, 2002, among Dow Xxxxx & Company, Inc. (the "Company"),
the Lenders parties thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan
Bank), as Administrative Agent, Lloyds TSB Bank plc and Mellon Bank, N.A.,
as Co-Documentation Agent, and The Bank of New York and Fleet National
Bank, as Co-Syndication Agents (as the same may be amended, supplemented or
otherwise modified, the "Agreement").
This opinion is delivered to you pursuant to Section 4 of the
Agreement. Terms used herein which are defined in the Agreement shall have
the respective meanings set forth in the Agreement, unless otherwise
defined herein.
In connection with this opinion, I have examined executed copies
of the Agreement and such corporate documents and records of the Company
and its Subsidiaries, certificates of public officials and officers of the
Company and its Subsidiaries, and such other documents, as I have deemed
necessary or appropriate for the purposes of this opinion. In stating my
opinion, I have assumed the genuineness of all signatures of, and the
authority of, persons signing the Agreement on behalf of parties thereto
other than the Company, the authenticity of all documents submitted to me
as originals and the conformity to authentic original documents of all
documents submitted to me as certified, conformed or photostatic copies.
2
Based upon the foregoing, I am of the opinion that:
1.Each of the Company and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (b) has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
under lease and to conduct the business in which it is currently engaged
and (c) to the best of my knowledge, is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification and where the failure to be so
qualified would have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
2. The Company has the corporate power and authority to make,
deliver and perform the Agreement and to borrow thereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of the Agreement and to authorize the execution, delivery and
performance of the Agreement and any promissory notes that may be issued
after the date hereof to evidence the loans consistent with the terms of
the Agreement. No consent or authorization of, filing with, or other act
by or in respect of any Governmental Authority, is required to be obtained
by the Company in connection with the borrowings thereunder or with the
execution, delivery, performance, validity or enforceability of the
Agreement.
3. The Agreement has been duly executed and delivered on behalf
of the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law). No opinion is expressed as to the availability of the remedy of
specific performance.
4. The execution, delivery and performance of the Agreement by
the Company and the use of the proceeds of the borrowings thereunder as
provided therein, will not violate any provision of any existing law or
regulation applicable to the Company, or, to the best of my knowledge, of
any order, judgment, award or decree of any court, arbitrator or
governmental authority binding upon or applicable to the Company, or of the
Certificate of Incorporation or By-Laws of the Company, or, to the best of
my knowledge, of any securities issued by the Company, or, to the best of
my knowledge, of any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking by which the Company or any of its
Subsidiaries or any of their respective assets may be bound, and, to the
best of my knowledge, will not result in or require the creation or
imposition of any Lien on any of its or their respective properties, assets
or revenues pursuant to the provisions of any such mortgage, indenture,
lease, contract or other agreement, instrument or undertaking.
5. To the best of my knowledge, no litigation, investigation or
proceeding of or before any court, arbitrator or governmental authority is
pending or threatened by or against the Company or any of its Subsidiaries
or against any of its or their respective properties or revenues (a) with
respect to the Agreement or any of the transactions contemplated thereby,
or (b) which, if adversely determined, would have a material adverse effect
3
on the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company," or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
7. Assuming that the Company will comply with the provisions of
the Credit Agreement relating to the use of proceeds, the making of the
Loans under the Credit Agreement will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
The opinions expressed herein are solely for the benefit of the
Administrative Agent, the Documentation Agent, the Co-Syndication Agents
and the Lenders in connection with the Agreement and may not be relied on
in any manner or for any purpose by any other person or entity.
Very truly yours,
/s/ Xxxxx X. Xxxxxxx
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 4 of the 364-Day Credit Agreement, dated as
of June 24, 2002, among Dow Xxxxx & Company, Inc. (the "Company"), the
Lenders parties thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan
Bank), as Administrative Agent, Llyods TSB Bank plc and Mellon Bank, N.A.,
as Co-Documentation Agent, and The Bank of New York and Fleet National
Bank, as Co-Syndication Agents (as the same may be amended, supplemented or
otherwise modified, the "Credit Agreement"), the undersigned hereby certify
as follows:
1. The representations and warranties of the Company set forth
in the Credit Agreement or which are contained in any certificate, document
or financial or other statement furnished pursuant to or in connection with
the Credit Agreement are true and correct on and as of the date hereof with
the same effect as if made on the date hereof; and
2. On the date hereof, no Default or Event of Default (both as
defined in the Credit Agreement) has occurred and is continuing under the
Credit Agreement as of the date hereof or after giving effect to any Loans
to be made on the date hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his name.
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President, Finance and
Controller
By: /s/ Xxxxxx X. XxXxxxx
---------------------
Name: Xxxxxx X. XxXxxxx
Title: Treasurer and Assistant
Secretary
Date: June 24, 2002
Exhibit H
FORM OF CERTIFICATE OF THE
SECRETARY OF THE COMPANY
Pursuant to Section 4 of the 364-Day Credit Agreement, dated as
of June 24, 2002, among Dow Xxxxx & Company, Inc. (the "Company"), the
Lenders parties thereto, JPMorgan Chase Bank (f/k/a The Chase Manhattan
Bank), as Administrative Agent, Llyods TSB Bank plc and Mellon Bank N.A.,
as Co-Documentation Agent, and The Bank of New York and Fleet National
Bank, as Co-Syndication Agents (as the same may be amended, supplemented or
otherwise modified, the "Credit Agreement"), the undersigned Secretary of
the Company hereby certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on
February 21, 1996, and such resolutions have not in any way been rescinded
or modified and have been in full force and effect since their adoption to
and including the date hereof and are now in full force and effect; and
such resolutions are the only corporate proceedings of the Company now in
force relating to or affecting the matters referred to therein.
2. Attached hereto as Annex II is a true and complete copy of
the By-laws of the Company as in effect at all times since May 17, 1989, to
and including the date hereof.
3. Attached hereto as Annex III is a true and complete copy of
the Restated Certificate of Incorporation of the Company, as amended, as in
effect at all times since April 25, 1989, to and including the date hereof,
and no action has been taken to amend, repeal, modify or revoke such
certificate.
4. The following persons are now duly elected and qualified
officers of the Company, holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Company at all times since the respective dates set forth opposite their
names, to and including the date hereof, and the signatures appearing
opposite their respective names below are the true and genuine signatures
of such officers, and each of such officers is duly authorized to execute
and deliver on behalf of the Company the Credit Agreement, any Notes of the
Company to be issued pursuant thereto and any certificate or other document
to be delivered by the company pursuant to the Credit Agreement and to act
as Responsible Officers on behalf of the Company under the Credit
Agreement:
Name Office Signature Month & Year
of Election
Xxxxxxx X. Xxxxxxx Executive Vice President /s/ Xxxxxxx X. Xxxxxxx April 2002
and Chief Financial Officer
Xxxxxxxxxxx X. Xxxxx Vice President, Finance /s/ Xxxxxxxxxxx X. Xxxxx April 2002
and Controller
Xxxxxx X. XxXxxxx Treasurer and Assistant /s/ Xxxxxx X. XxXxxxx April 2002
Secretary
Xxxxxx X. Xxxxxxxx Assistant Treasurer /s/ Xxxxxx X. Xxxxxxxx April 2002
IN WITNESS WHEREOF, the undersigned has hereunto set his name and
affixed the corporate seal of the Company.
Dated: June 24, 2002
/s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx,
Executive Vice President,
General Counsel and Secretary
(CORPORATE SEAL)
I, Xxxxxxxxxxx X. Xxxxx, Vice President, Finance and Controller
of the Company, hereby certify that Xxxxx X. Xxxxxxx, whose genuine
signature appears above, is, and has been at all times since April 17,
2002, a duly elected, qualified and acting Secretary of the Company.
Dated: June 24, 2002
/s/Xxxxxxxxxxx X. Xxxxx
-----------------------
Xxxxxxxxxxx X. Xxxxx
Vice President, Finance and Controller
Exhibit I
FORM OF
COMPETITIVE LOAN ASSIGNMENT
Reference is made to the 364-Day Credit Agreement, dated as of
June 24, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders named therein, JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), ____________________, as Documentation Agent,
and ____________________ and ______________________, as Co-Syndication
Agents. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and
the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to the
Assignor, as of the Effective Date (as defined below), the Competitive Loan
(the "Assigned Loan") and any Note evidencing such Competitive Loan
described in Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any
of its Subsidiaries or any other obligor or the performance or observance
by the Company, any of its Subsidiaries or any other obligor of any of
their respective obligations under the Credit Agreement, any Notes or any
other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Notes held by it evidencing the Assigned Loan and (i) requests
that the Administrative Agent, upon request by the Assignee, exchange the
attached Notes for a new Note or Notes payable to the Assignee and (ii) if
the Assignor has retained any interest in any Note evidencing the Assigned
Loan, requests that the Administrative Agent exchange the attached Notes
for a new Note or Notes payable to the Assignor, in each case in amounts
which reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Competitive Loan Assignment; (b) confirms
that it has received a copy of the Credit Agreement, together with copies
of the financial statements delivered pursuant to subsection 3.1 thereof
and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Competitive
Loan Assignment; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any 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
2
action permitted by the Credit Agreement, any Notes or any other instrument
or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement, any Notes or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the terms and conditions contained in the
Credit Agreement applicable to it (including, without limitation, the terms
and conditions contained in subsections 9.6 and 9.7 thereof) and will
perform in accordance with such terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it, including
its obligations pursuant to subsection 2.12 of the Credit Agreement.
4. The effective date of this Competitive Loan Assignment shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Competitive Loan
Assignment, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. [Option 1: Upon such acceptance and recording, from and
after the Effective Date, the Assignor shall act as collection agent for
the Assignee hereunder, and the Administrative Agent shall pay all amounts
(including payments of principal, interest, fees and other amounts)
received from the Company which are allocable to the Assigned Loan and any
Note evidencing such Assigned Loan directly to the Assignor without any
further liability to the Assignee.] [Option 2: Upon such acceptance and
recording, from and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Loan and any Note
evidencing such Assigned Loan (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to
the Effective Date and to the Assignee for amounts which have accrued
subsequent to the Effective Date.]
6. Any payments to the Competitive Loan Assignee in respect of
the Assigned Loan shall be made in accordance with the payment instructions
set forth on Schedule 2 hereto.
7. This Competitive Loan Assignment shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Competitive Loan Assignment to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Competitive Loan Assignment
Name of Assignor:
---------------------------------
Name of Assignee:
--------------------------------
Address for Notices:
Contact: -------------------------------
Title:
--------------------------------
Telephone No.:
----------------------
Fax No.:
--------------------------
Lending Office Address:
------------------------------------
Contact:
---------------------------------
Title:
----------------------------------
Telephone No.:
--------------------
Fax No.
---------------------------
Effective Date of Assignment:
--------------------------
Competitive Loan Assigned Principal Amount Assigned Maturity Date
$
------------
----------------------------------- ---------------------------
[Name of Assignee] [Name of Assignor]
By: By:
------------------- -------------------
Name: Name:
Title: Title:
Accepted:
-----------------
JPMORGAN CHASE BANK, as
Administrative Agent
By:
----------------
Name:
Title:
Schedule 2
to Competitive Loan Assignment
Payment Instructions
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement, dated as of
June 24, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders named therein, JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), ____________________, as Documentation Agent,
and ____________________ and ______________________, as Co-Syndication
Agents. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and
the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to the
Assignor, as of the Effective Date (as defined below), the interest
described in Schedule 1 hereto (the "Assigned Interest") in and to the
Assignor's rights and obligations under the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any
of its Subsidiaries or any other obligor or the performance or observance
by the Company, any of its Subsidiaries or any other obligor of any of
their respective obligations under the Credit Agreement, any Notes or any
other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Notes held by it evidencing the Assigned Interest and (i)
requests that the Administrative Agent, upon request by the Assignee,
exchange the attached Notes for a new Note or Notes payable to the Assignee
and (ii) if the Assignor has retained any interest in any Note evidencing
the Assigned Interest, requests that the Administrative Agent exchange the
attached Notes for a new Note or Notes payable to the Assignor, in each
case in amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1 thereof and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance
upon the Assignor, the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
2
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, any Notes or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any other
instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and (e) agrees that it will be bound
by the provisions of the Credit Agreement and will perform in accordance
with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender, including its
obligations pursuant to subsection 2.12 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to the
Effective Date and to the Assignee for amounts which have accrued
subsequent to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and shall be bound by the provisions thereof, and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written
by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor:
-------------------------
Name of Assignee:
-------------------------
Effective Date of Assignment:
----------------
-------------------------- ------------------------------
Principal Amount Assigned Commitment Percentage Assigned
$ %
------------ ------
-------------------------- -------------------------
[Name of Assignee] [Name of Assignor]
By: By:
------------------ --------------------
Name: Name:
Title: Title:
------------------------------ -----------------------
Accepted: Consented To:
JPMORGAN CHASE BANK, DOW XXXXX & COMPANY, INC.
as Administrative Agent
By: By:
------------------ -----------------
Name: Name:
Title: Title:
JPMORGAN CHASE BANK, as
Administrative Agent
By:
-------------------
Name:
Title:
