EXHIBIT
(10)(ee)
FIVE YEAR
CREDIT AGREEMENT
Dated as
of March 7, 2005
among
ENGELHARD
CORPORATION
The
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
J.P.
MORGAN SECURITIES INC.,
as Lead
Arranger and Book Manager
ABN-AMRO
BANK N.V. and
BANK OF
AMERICA, N.A.,
as
Syndication Agents
BANK OF
TOKYO-MITSUBISHI TRUST COMPANY and
MELLON
BANK N.A.,
as
Documentation Agents
FIVE YEAR
CREDIT AGREEMENT dated as of March 7, 2005, among ENGELHARD CORPORATION, a
corporation duly organized and validly existing under the laws of the State of
Delaware (the “Company”), the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A., as Swingline Lender and Administrative Agent.
The Company has requested that
(i) the Lenders make loans to it in an aggregate principal amount not
exceeding $800,000,000 (as the same may be reduced by the Lenders’ LC Exposure
resulting from Letters of Credit issued as described in clause (ii) below,
or pursuant to Section 2.05(b) hereof or increased pursuant to Section 2.11
hereof) at any one time outstanding by way of Syndicated Loans (which may be
Eurodollar Loans or Base Rate Loans) and/or pursuant to a competitive bid option
providing for Competitive Bid Loans (which may be LIBOR Bid Loans or Absolute
Rate Loans), (ii) the Issuing Banks issue Letters of Credit, as such terms are
defined below, in amounts resulting in an LC Exposure not to exceed $75,000,000,
and (iii) the Swingline Lender make Swingline Loans in amounts not to
exceed $100,000,000, as such terms are defined below, and the Lenders, the
Issuing Banks and the Swingline Lender are prepared to make such loans and issue
such Letters of Credit upon and subject to the terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
ARTICLE
I
Definitions
and Accounting Matters.
SECTION
1.01. Certain
Defined Terms. As used
herein, the following terms shall have the following meanings (all terms defined
in this Section 1.01 or in other provisions of this Agreement in the
singular to have the same meanings when used in the plural and vice
versa):
“Absolute
Rate” shall
have the meaning assigned to such term in Section 2.03(c)(ii)(D)
hereof.
“Absolute
Rate Auction” shall
mean a solicitation of Competitive Bid Quotes setting forth Absolute Rates
pursuant to Section 2.03 hereof.
“Absolute
Rate Loans” shall
mean Competitive Bid Loans, the interest rates on which are determined on the
basis of Absolute Rates pursuant to an Absolute Rate Auction.
“Administrative
Agent” means
JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the
Lenders hereunder, or any successor administrative agent appointed in accordance
with Article X.
“Administrative
Questionnaire” shall
mean an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified
“Applicable
Facility Fee Rate”,
“Applicable
Margin” and
“Applicable
Utilization Fee Rate” shall
mean, during any period when any of the Rating Groups specified below is in
effect, the percentage set forth below opposite the reference to such fee or to
the relevant Type of Syndicated Loan:
|
Applicable
Facility Fee Rate |
Applicable
Margin |
Applicable
Utilization Fee Rate |
|
|
|
|
Rating
Group I |
0.070% |
0.180% |
0.050% |
|
|
|
|
Rating
Group II |
0.080% |
0.220% |
0.075% |
|
|
|
|
Rating
Group III |
0.110% |
0.290% |
0.100% |
|
|
|
|
Rating
Group IV |
0.150% |
0.350% |
0.125% |
|
|
|
|
Rating
Group V |
0.200% |
0.425% |
0.125% |
|
|
|
|
Any change in the
Applicable Facility Fee Rate, the Applicable Margin or the Applicable
Utilization Fee Rate by reason of a change in the Moody’s Rating or the Standard
& Poor’s Rating (or a Substitute Rating) shall become effective on the date
of announcement or publication by the respective Rating Agency of a change in
such Rating or, in the absence of such announcement or publication, on the
effective date of such changed rating.
“Applicable
Percentage” shall
mean, with respect to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any
assignments.
“Assignment
and Assumption” shall
mean an agreement in the form of Exhibit E hereto.
“Base
Rate” shall
mean, for any day, a rate per annum equal to the higher of (a) the Federal
Funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate for such day.
Each change in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
“Base
Rate Loans” shall
mean Syndicated Loans that bear interest at rates based upon the Base
Rate.
“Business
Day” shall
mean any day (a) on which commercial banks are not authorized or required
to close in New York City and (b) if such day relates to the giving of
notices or quotes in connection with a LIBOR Auction or to a borrowing of, a
payment or prepayment of principal of or interest on, or a Conversion of or
into, or an Interest Period for, a Eurodollar Loan or a LIBOR Bid Loan or a
notice by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
“Change
in Control” shall
have the meaning assigned to such term in paragraph (j) of Article 9
hereof.
“Class” shall
have the meaning assigned to such term in Section 1.03 hereof.
“Closing
Date” shall
mean the date hereof.
“Code” shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
“Commitment” shall
mean, as to each Lender, the obligation of such Lender to (a) make
Syndicated Loans pursuant to Section 2.01 hereof, and (b) to acquire
participations in Letters of Credit pursuant to Section 2.13 hereof, in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Lender on Schedule I hereof under
the caption “Commitment” or, in the case of a Person that becomes a Lender
pursuant to an assignment permitted under Section 11.06(b) hereof, as
specified in the respective instrument of assignment pursuant to which such
assignment is effected or, in the case of a Person that becomes a Lender
pursuant to Section 2.11 hereof, as reflected in the respective instrument
pursuant to which such Person agrees to become a Lender hereunder (in each case,
as the same may be reduced at any time or from time to time pursuant to
Section 2.05 or 11.06 hereof or increased pursuant to Section 2.11 or
5.06 hereof).
“Competitive
Bid Borrowing” shall
have the meaning assigned to such term in Section 2.03(b) hereof.
“Competitive
Bid Loans” shall
mean the loans provided for by Section 2.03 hereof.
“Competitive
Bid Note” shall
mean the promissory note requested by a Lender pursuant to Section 2.09(d)
hereof for its Competitive Bid Loans and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
“Competitive
Bid Quote” shall
mean an offer in accordance with Section 2.03(c) hereof by a Lender to make
a Competitive Bid Loan with one single specified interest rate.
“Competitive
Bid Quote Request” shall
have the meaning assigned to such term in Section 2.03(b)
hereof.
“Confidentiality
Agreement” shall
mean an agreement substantially in the form of Exhibit D
hereto.
“Consent
Date” shall
have the meaning set forth in Section 2.12(a) hereof.
“Consolidated
Tangible Net Worth” shall
mean the excess of (i) the consolidated net book value of the assets of the
Company and its Subsidiaries (other than patents, patent rights, trademarks,
trade names, franchises, copyrights, licenses, permits, goodwill and other
intangible assets classified as such in accordance with GAAP) after all
appropriate deductions in accordance with GAAP (including, without limitation,
reserves for doubtful receivables, obsolescence, depreciation and amortization)
plus the amounts, if any, by which the market value of precious metals
inventories and investments exceeds the carrying value of those metals on the
consolidated books of account of the Company, in each case, computed and
consolidated in accordance with GAAP over (ii) Total Debt.
“Continuation”,
“Continue” and
“Continued” shall
refer to the continuation pursuant to Section 2.10 hereof of a Eurodollar
Loan from one Interest Period to the next Interest Period.
“Contract” shall
mean any agreement or transaction (other than for obligations incurred in
connection with the borrowing of money or the obtaining of advances or credit)
entered into by the Company or any of its Subsidiaries in the ordinary course of
its business and not for the purpose of speculation, including, without
limitation, any agreement or transaction relating to any currency or commodity
regularly used or traded by the Company or any of its Subsidiaries, including
sale, purchase or entry into any swap agreement in respect of a notional
quantity; sale or purchase of any contract for future delivery; or sale or
purchase of any put or call option in respect of any such currency or
commodity.
“Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have
meanings correlative thereto.
“Conversion”,
“Convert” and
“Converted” shall
refer to a conversion pursuant to Section 2.10 hereof of one Type of
Syndicated Loan into another Type of Syndicated Loan, which may be accompanied
by the transfer by a Lender (at its sole discretion) of a Loan from one lending
office to another.
“Debt” of any
Person means, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person with respect to
reimbursement obligations relating to letters of credit issued for the account
of such Person and drawn upon by the applicable beneficiary and not repaid by
such Person, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, and (d) all obligations of such
Person as lessee under leases which are capitalized in accordance with
GAAP.
“Default” shall
mean an Event of Default or an event that with notice or lapse of time or both
would become an Event of Default.
“Dollars” and
“$” shall
mean lawful money of the United States of America.
“Domestic
Subsidiary” shall
mean any Subsidiary of the Company that is organized under the laws of any State
of the United States of America.
“EBITDA” shall
mean, for any period, the sum, determined on a consolidated basis without
duplication, of the Company’s and its consolidated Subsidiaries: (i) net
earnings from continuing operations (or net loss), but excluding from such
amount any equity income (or loss) of Affiliates and the gain (or loss) on the
sale of long-term investments, (ii) interest expense, (iii) income tax
expense, (iv) depreciation expense, (v) amortization and depletion
expense, and (vi) all other non-cash charges, in each case determined in
accordance with GAAP for such period, provided that with respect to each of the
items set forth in clauses (i) through (vi) above, any extraordinary
amounts shall be excluded from the relevant calculations.
“Environmental
Laws” shall
mean all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating to the environment, preservation or
reclamation of natural resources, including those relating to the management,
release or threatened release of any Hazardous Material.
“Environmental
Liability” shall
mean any liability (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities) of the Company or any Subsidiary
based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.
“ERISA
Affiliate” shall
mean any corporation or trade or business that is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of
which the Company is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which the Company is a member.
“Eurodollar
Loans” shall
mean Syndicated Loans that bear interest at rates based on rates referred to in
the definition of “Eurodollar Rate” in this Section 1.01.
“Eurodollar
Rate” shall
mean, for any Fixed Rate Loan for any Interest Period therefor:
(a) a rate
per annum determined by the Administrative Agent to be equal to the rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) reported at
11:00 a.m., London time on the date two Business Days prior to the first
day of such Interest Period on Telerate Access Service Page 3750 (British
Bankers Association Settlement Rate) (or on any successor or substitute page of
such service) as the London Interbank Offered Rate for Dollar deposits having a
term comparable to such Interest Period; or
(b) if such
rate shall cease to be publicly available on the Telerate Access Service Page
3750 (or on any successor or substitute page of such service) or if the
information contained on said Page, in the sole judgment of the Administrative
Agent, shall cease to accurately reflect such London Interbank Offered Rate, the
Eurodollar Rate shall mean the arithmetic mean (rounded upwards, if necessary,
to the nearest 1/16 of 1%), as determined by the Administrative Agent, of the
rates per annum quoted by the respective Reference Banks at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on the date
two Business Days prior to the first day of such Interest Period for the
offering by the respective Reference Banks to leading banks in the London
interbank market of Dollar deposits having a term comparable to such Interest
Period and in an amount comparable to the principal amount of such Fixed Rate
Loan to be made by the respective Reference Banks for such Interest Period;
provided that (i) if any Reference Bank is not participating in any Fixed Rate
Loans during any Interest Period therefor, the Eurodollar Rate for such Loans
for such Interest Period shall be determined by reference to the amount of such
Loans that such
Reference Bank would have made
or had outstanding had it been participating in such Loan during such Interest
Period, (ii) in determining the Eurodollar Rate with respect to any
Competitive Bid Loans, each Reference Bank shall be deemed to have made a
Competitive Bid Loan in an amount equal to $10,000,000 and (iii) if any
Reference Bank does not timely furnish such information for determination of any
Eurodollar Rate, the Administrative Agent shall determine such Eurodollar Rate
on the basis of the information timely furnished by the remaining Reference
Banks.
“Event
of Default” shall
have the meaning assigned to such term in Article 9 hereof.
“Existing
Credit Agreements” shall
mean (i) the Five Year Credit Agreement dated as of May 11, 2001, as amended,
among the Company, the banks party thereto and JPMorgan Chase Bank, N.A., as
administrative agent and (ii) the Amended and Restated Credit Agreement dated as
of May 6, 2004, among the Company, the banks party thereto and JPMorgan Chase
Bank, N.A., as administrative agent.
“Federal
Funds Rate” shall
mean, for any day, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (a) if
the day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day
and (b) if such rate is not so published for any Business Day, the Federal Funds
Rate for such Business Day shall be the average rate charged to JPMCB on such
Business Day on such transactions as determined by the Administrative
Agent.
“Financial
Officer” shall
mean the Chief Financial Officer, the Treasurer or the Controller of the
Company.
“Fitch
IBCA” shall
mean Fitch IBCA Duff & Phelps, or any successor thereto.
“Fixed
Rate Loans” shall
mean Eurodollar Loans and Competitive Bid Loans (other than Absolute Rate
Loans).
“GAAP” shall
mean generally accepted accounting principles applied on a basis consistent with
those that, in accordance with the last sentence of Section 1.02(a) hereof,
are to be used in making the calculations for purposes of determining compliance
with this Agreement.
“Governmental
Authority” shall
mean the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body or court or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of government.
“Granting
Lender” shall
have the meaning assigned to such term in Section 11.05 hereof.
“Hazardous
Materials” shall
mean all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including, but not limited to,
petroleum or petroleum distillates, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature,
in each case as regulated pursuant to any Environmental Law.
“Indemnified
Persons” shall
have the meaning assigned to such term in Section 11.03 hereof.
“Interest
Period” shall
mean:
(a) with respect to any
Eurodollar Loan, each period commencing on the date such Eurodollar Loan is made
or Converted from a Loan of another Type or (in the event of a Continuation) the
last day of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the
first,
second, third, sixth or, if agreed by all of the Lenders, ninth or twelfth
calendar month thereafter, or any other period to which all the Lenders have
consented, as the Company may select as provided in Section 4.05 hereof,
provided that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month;
(b) with respect
to any Absolute Rate Loan, the period commencing on the date such Absolute Rate
Loan is made and ending on any Business Day not less than seven days and not
more than one year thereafter, as the Company may select as provided in Section
2.03(b) hereof; and
(c) with respect to any
LIBOR Bid Loan, the period commencing on the date such LIBOR Bid Loan is made
and ending on the numerically corresponding day such number of months not
exceeding twelve thereafter, as the Company may select as provided in Section
2.03(b) hereof, provided that each Interest Period that commences on the last
Business Day of a calendar month (or any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month.
Notwithstanding
the foregoing, (i) if any Interest Period for any Loan would otherwise end
after the Maturity Date, such Interest Period shall not be available hereunder
for such period; (ii) each Interest Period that would otherwise end on a
day that is not a Business Day shall end on the next succeeding Business Day
(or, in the case of an Interest Period for a Fixed Rate Loan, if such next
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); and (iii) no Interest Period for any Loan (other
than an Absolute Rate Loan) shall have a duration of less than one month and, if
the Interest Period for any Fixed Rate Loan would otherwise be a shorter period,
such Loan shall not be available hereunder for such period.
“Issuing
Bank” means
any Lender selected by the Company which has agreed to issue Letters of Credit
hereunder, in such Lender’s capacity as an issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in
Section 2.13(i). The Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term “Issuing Bank” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
“JPMCB” shall
mean JPMorgan Chase Bank, N.A., and its successors.
“LC
Disbursement” means a
payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Company
at such time. The LC Exposure of any Lender at any time shall be equal to the
total LC Exposure multiplied by a fraction, the numerator of which is equal to
such Lender’s Commitment and the denominator of which is equal to the aggregate
Commitments of all the Lenders at such time.
“LC
Obligations” means,
at any time, all obligations of each of the Lenders hereunder with respect to
any Letter of Credit issued and outstanding pursuant to the terms
hereof.
“Lender
Affiliate” shall
mean:
(a) with respect to any
Lender, any entity (whether a corporation, partnership, trust or otherwise)
which is not an Affiliate, but that is engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or
an Affiliate of such Lender; and
(b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that is not an Affiliate and invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
“Lenders” means
the Persons listed on Schedule I and any other Person that shall become a party
hereto pursuant to an Assignment and Assumption or pursuant to Section 2.11(b),
other than a Person that ceases to be party hereto pursuant to an Assignment and
Assumption.
“Letter
of Credit” means
any stand-by letter of credit issued pursuant to this Agreement.
“LIBO
Margin” shall
have the meaning assigned to such term in Section 2.03(c)(ii)(C)
hereof.
“LIBOR
Auction” shall
mean a solicitation of Competitive Bid Quotes setting forth Eurodollar Rates
pursuant to Section 2.03 hereof.
“LIBOR
Bid Loans” shall
mean Competitive Bid Loans the interest rates in which are determined on the
basis of Eurodollar Rates pursuant to a LIBOR Auction.
“Lien” shall
mean, with respect to any Property, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such Property. For purposes of
this Agreement, a Person shall be deemed to own subject to a Lien any Property
that it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement (other than an operating lease) relating to such
Property.
“Loans” shall
mean Syndicated Loans, Competitive Bid Loans and Swingline Loans.
“Maturity
Date” means
March 7, 2010, as such date may be extended pursuant to Section 2.12 hereof;
provided that if
such date is not a Business Day, the Maturity Date shall be the immediately
preceding Business Day.
“Moody’s” shall
mean Moody’s Investors Service, Inc. or any successor thereto.
“Moody’s
Rating” shall
mean, as of any date, the rating most recently announced or published by Moody’s
relating to the unsecured, long-term, senior debt securities of the Company then
outstanding.
“Multiemployer
Plan” shall
mean a multiemployer plan defined as such in Section 3(37) of ERISA to
which contributions have been made by the Company or any ERISA Affiliate and
that is covered by Title IV of ERISA.
“Notes” shall
mean any promissory note issued by the Company pursuant to Section 2.09(d)
hereof and which Notes may be Syndicated Notes, Competitive Bid Notes or a
Swingline Note.
“Participant” shall
have the meaning assigned to such term in Section 11.06(c) hereof.
“PBGC” shall
mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or
all of its functions under ERISA.
“Person” shall
mean any individual, corporation, company, voluntary association, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision
thereof).
“Plan” shall
mean an employee benefit or other plan established or maintained by the Company
or any ERISA Affiliate and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.
“Post-Default
Rate” shall
mean a rate per annum equal to one percent (1%) plus the Base Rate as in effect
from time to time, provided that, with respect to principal of a Fixed Rate Loan
that shall become due (whether at stated maturity, by acceleration, by optional
or mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the “Post-Default Rate” shall be a rate per annum
equal to, for the period from and including such due date to but excluding the
last day of such Interest Period, one percent (1%) plus the
interest
rate for such Loan as provided in Section 3.02 hereof and, thereafter, the rate
provided for above in this definition.
“Prime
Rate” shall
mean the rate of interest from time to time announced by JPMCB at its principal
office as its prime commercial lending rate.
“Property” shall
mean any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible.
“Pro
Rata Percentage” shall
have the meaning assigned to such term in Section 2.13(d)
hereof.
“Quarterly
Dates” shall
mean the last Business Day of March, June, September and December in each year,
the first of which shall be the first such day after the Closing
Date.
“Quotation
Date” shall
have the meaning assigned to such term in Section 2.03(b)(v)
hereof.
“Rating” shall
mean the Moody’s Rating or the Standard & Poor’s Rating; provided that, the
Company may substitute a Substitute Rating for either (but not both) the Moody’s
Rating or the Standard & Poor’s Rating (i.e. either the Moody’s Rating or
the Standard & Poor’s Rating must at all times be a Rating).
“Rating
Agency” shall
mean Moody’s, Standard & Poor’s or Fitch IBCA, as the case may
be.
“Rating
Group” shall
mean any of Rating Group I, Rating Group II, Rating Group III,
Rating Group IV and Rating Group V.
“Rating
Group I” shall
be in effect when the Moody’s Rating is at or above A2 (or a Substitute Rating
is at or above the corresponding level) or the Standard & Poor’s Rating
is at or above A (or a Substitute Rating is at or above the corresponding
level); “Rating
Group II” shall
be in effect when (a) the Moody’s Rating is at or above A3 (or a Substitute
Rating is at or above the corresponding level) or the Standard & Poor’s
Rating is at or above A- (or a Substitute Rating is at or above the
corresponding level) and (b) Rating Group I is not in effect;
“Rating
Group III” shall
be in effect when (a) the Moody’s Rating is at or above Baal (or a
Substitute Rating is at or above the corresponding level) or the
Standard & Poor’s Rating is at or above BBB+ (or a Substitute Rating is
at or above the corresponding level) and (b) neither Rating Group I
nor Rating Group II is in effect; “Rating
Group IV” shall
be in effect when (a) the Moody’s Rating is at or above Baa2 (or a Substitute
Rating is at or above the corresponding level) or the Standard & Poor’s
Rating is at or above BBB (or a Substitute Rating is at or above the
corresponding level) and (b) none of Rating Group I, Rating
Group II or Rating Group III is in effect; and “Rating
Group V” shall
be in effect when none of Rating Group I, Rating Group II, Rating
Group III or Rating Group IV is in effect; provided that, (A) if
the Moody’s Rating (or a Substitute Rating) and the Standard & Poor’s
Rating (or a Substitute Rating) fall into different Rating levels and one of
such Ratings is no more than one Rating level lower than the other of such
Ratings, then the applicable Rating Group shall be based upon the higher of such
Ratings, (B) if the Moody’s Rating (or a Substitute Rating) and the
Standard & Poor’s Rating (or a Substitute Rating) fall into different
Rating levels and one of such Ratings is two or more Rating levels lower than
the other of such Ratings, then the applicable Rating Group shall be based upon
a hypothetical Rating that would fall into the rating level that is one lower
than the Rating level into which the higher of such Ratings falls and
(C) the Company may substitute a Substitute Rating for either (but not both
of) the Moody’s Rating or the Standard & Poor’s Rating (i.e. either the
Moody’s Rating or the Standard & Poor’s Rating must at all times be
used to determine which Rating Group is then in effect).
“Reference
Banks” shall
mean JPMCB, ABN-AMRO Bank N.V., Bank of America, N.A., Bank of Tokyo-Mitsubishi
Trust Company and Mellon Bank N.A.
“Regulations A,
D and U” shall
mean, respectively, Regulations A, D and U of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
“Related
Parties” means,
with respect to any specified Person, each of its officers, directors and
employees.
“Required
Lenders” shall
mean, at any time, Lenders having Revolving Credit Exposures and unused
Commitments representing more than 50% of the aggregate Revolving Credit
Exposures and unused Commitments at such time.
“Reportable
Event” shall
mean any reportable event as defined in Section 4043(c) of ERISA, other than a
reportable event as to which provision for 30-day notice to the PBGC would be
waived under applicable regulations had the regulations in effect on the Closing
Date been in effect on the date of occurrence of such reportable
event.
“Responsible
Officer” shall
mean, with respect to any Issuing Bank, those officers listed on a written
schedule provided by such Issuing Bank to the Company and consented to by the
Company on or prior to the date such Issuing Bank issues its first Letter of
Credit pursuant to the terms hereof, such schedule to be revised from time to
time by mutual agreement in writing between the Issuing Bank and the
Company.
“Revolving
Credit Exposure” means,
with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender’s Syndicated Loans and its LC Exposure at such
time.
“Significant
Subsidiary” shall
mean any Subsidiary of the Company having total assets as of the last day of the
most recent fiscal year of the Company equal to or greater than 5% of the
consolidated total assets of the Company and its Subsidiaries as of such
date.
“SPC” shall
have the meaning assigned to such term in Section 11.05 hereof.
“Standard &
Poor’s” shall
mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
“Standard &
Poor’s Rating” shall
mean, as of any date, the rating most recently announced or published by
Standard & Poor’s relating to the unsecured, long-term, senior debt
securities of the Company then outstanding.
“Subsidiary” shall
mean, with respect to any Person, any corporation, partnership or other entity
of which at least a majority of the securities or other ownership interests
having by the terms thereof ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such
Person.
“Substitute
Rating” shall
mean, as of any date, the rating most recently announced or published by Fitch
IBCA relating to the unsecured, long-term, senior debt securities of the Company
then outstanding.
“Swingline
Commitment” shall
mean the obligation of the Swingline Lender to make Swingline Loans in an
aggregate amount not to exceed the lesser of (i) $100,000,000 and
(ii) the aggregate amount of the Commitments.
“Swingline
Lender” means
JPMCB, acting in such capacity.
“Swingline
Loans” shall
mean the loans provided for by Section 2.04 hereof.
“Swingline
Maturity Date” shall
mean, for any Swingline Loan, the earliest of (i) the fifteenth day, or
last day, of the month in which such Swingline Loan was made, (ii) the
Maturity Date and (iii) the borrowing of any Syndicated Loan or Competitive
Bid Loan.
“Swingline
Note” shall
mean the promissory note requested by the Swingline Lender for its Swingline
Loans pursuant to Section 2.09(d) hereof and all promissory notes delivered
in substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
“Syndicated
Loans” shall
mean the loans provided for by Section 2.01 hereof, which may be Base Rate
Loans and/or Eurodollar Loans.
“Syndicated
Note” shall
mean the promissory note requested by a Lender for its Syndicated Loans pursuant
to Section 2.09(d) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
“Total
Debt” shall
mean, as at any date, the consolidated liabilities of the Company and its
consolidated Subsidiaries (including tax and other proper accruals but excluding
the accumulated postretirement benefit obligation resulting from the application
of the provisions of FAS No. 106, “Employers’ Accounting for Postretirement
Benefits Other Than Pensions”).
“Type” shall
have the meaning assigned to such term in Section 1.03 hereof.
“Withdrawal
Liability” shall
have the meaning given such term under Part I of Subtitle E of Title IV of
ERISA.
SECTION
1.02. Accounting
Terms and Determinations.
(a) Except as
otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall
(unless otherwise disclosed to the Lenders in writing at the time of delivery
thereof in the manner described in subsection (b) below) be prepared, in
accordance with generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest financial statements
furnished to the Lenders hereunder (which, prior to the delivery of the first
financial statements under Section 8.04 hereof, shall mean the audited
financial statements as at December 31, 2004 referred to in
Section 7.04 hereof). All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise expressly provided
herein) be made by application of generally accepted accounting principles
applied on a basis consistent with those used in the preparation of the latest
annual or quarterly financial statements furnished to the Lenders pursuant to
Section 8.04 hereof (or, prior to the delivery of the first financial
statements under Section 8.04 hereof, used in the preparation of the
audited financial statements as at December 31, 2004 referred to in
Section 7.04 hereof) unless (i) the Company shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements or (ii) the Required Lenders shall so object in
writing within 30 days after delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.04
hereof, shall mean the audited financial statements as of December 31, 2004
referred to in Section 7.04 hereof).
(b) The
Company shall deliver to the Lenders at the same time as the delivery of any
annual or quarterly financial statement under Section 8.04 hereof
(i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference
between such statements arising as a consequence thereof.
SECTION
1.03. Classes
and Types of Loans. Loans
hereunder are distinguished by “Class” and by “Type”. The “Class” of a Loan
refers to whether such Loan is a Competitive Bid Loan, a Syndicated Loan or a
Swingline Loan, each of which constitutes a Class. The “Type” of a Loan refers
to whether such Loan is a Base Rate Loan, a Eurodollar Loan, an Absolute Rate
Loan or a LIBOR Bid Loan, each of which constitutes a Type. Loans may be
identified by both Class and Type.
ARTICLE
II
Commitments,
Loans, Notes and Prepayments.
SECTION
2.01. Syndicated
Loans. Each
Lender severally agrees, on the terms and conditions of this Agreement, to make
loans to the Company in Dollars during the period from and including the Closing
Date to, but not including the Maturity Date in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount of the Commitment of
such Lender as in effect from time to time; provided that (x) each Lender’s
Revolving Credit Exposure at any time shall not exceed its Commitment, and
(y) the aggregate principal amount of all Syndicated Loans, together with
the aggregate principal amount of all Competitive Bid Loans, Swingline Loans and
the LC Exposure, at any one time outstanding shall not exceed the aggregate
amount of the Commitments at such time. Subject to the terms and conditions of
this Agreement, during such period the Company may borrow, repay and reborrow
the amount of the Commitments by means of Base Rate Loans and Eurodollar Loans
and during such period and thereafter the Company may Convert Loans of one Type
into Loans of another Type (as provided in Section 2.10 hereof) or Continue
Loans of one Type as Loans of the same Type (as provided in Section 2.10
hereof); provided that no more than ten separate Interest Periods in respect of
Eurodollar Loans from each Lender may be outstanding at any one
time.
SECTION
2.02. Borrowings
of Syndicated Loans. The
Company shall give the Administrative Agent notice of each borrowing hereunder
as provided in Section 4.05 hereof. Not later than 1:00 p.m. New York time
on the date specified for each borrowing of Syndicated Loans hereunder, each
Lender shall make available the amount of the Syndicated Loan or Loans to be
made by it on such date to the Administrative Agent, at an account designated by
the Administrative Agent, in immediately available funds, for account of the
Company. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, promptly be made available to the
Company by depositing the same, in immediately available funds, in an account of
the Company designated by the Company and maintained with JPMCB at its principal
office, provided that Base Rate Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.13(e) shall be remitted by the
Administrative Agent to the relevant Issuing Bank.
SECTION
2.03. Competitive
Bid Option.
(a) In
addition to borrowings of Syndicated Loans, at any time prior to the Maturity
Date the Company may, as set forth in this Section 2.03, request the Lenders to
make offers to make Competitive Bid Loans to the Company in Dollars. The Lenders
may, but shall have no obligation to, make such offers and the Company may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.03. Competitive Bid Loans may be LIBOR Bid Loans or Absolute Rate
Loans, provided that:
(i) there may
be no more than fifteen different Interest Periods for both Syndicated Loans and
Competitive Bid Loans outstanding at the same time (for which purpose Interest
Periods described in different lettered clauses of the definition of the term
“Interest Period” shall be deemed to be different Interest Periods even if they
are coterminous); and
(ii) the
aggregate principal amount of all Competitive Bid Loans, together with the
aggregate principal amount of all Syndicated Loans, Swingline Loans and the LC
Exposure, at any one time outstanding shall not exceed the aggregate amount of
the Commitments at such time.
(b) When the
Company wishes to request offers to make Competitive Bid Loans, it shall give
the Administrative Agent (which shall promptly notify the Lenders) notice (a
“Competitive Bid Quote Request”) so as to be received no later than
11:00 a.m. New York time on (x) the fourth Business Day prior to the
date of borrowing proposed therein, in the case of a LIBOR Auction or
(y) one Business Day prior to the date of borrowing proposed therein, in
the case of an Absolute Rate Auction (or, in any such case, such other time and
date as the Company and the Administrative Agent, with the consent of the
Required Lenders, may agree). The Company may request offers to make Competitive
Bid Loans for up to three different Interest Periods in a single notice (for
which purpose Interest Periods in different lettered clauses of the definition
of the term “Interest Period” shall be deemed to be different Interest Periods
even if they are coterminous); provided that the request for each separate
Interest Period shall be deemed to be a separate Competitive Bid Quote Request
for a separate borrowing (a “Competitive Bid
Borrowing”).
Each such notice shall be substantially in the form of Exhibit B hereto and
shall specify as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a Business
Day;
(ii) the aggregate
amount of such Competitive Bid Borrowing, which shall be at least $10,000,000
(or a larger multiple of $1,000,000) but shall not cause the limits specified in
Section 2.03(a) hereof to be violated;
(iii)
the duration of the Interest Period applicable thereto;
(iv) whether the Competitive Bid Quotes requested for a particular Interest
Period are seeking quotes for LIBOR Bid Loans or Absolute Rate Loans;
and
(v) if the
Competitive Bid Quotes requested are seeking quotes for Absolute Rate Loans, the
date on which the Competitive Bid Quotes are to be submitted if it is before the
proposed date of borrowing (the proposed date of such borrowing or, if the date
on which such Competitive Bid Quotes are to be submitted is before the proposed
date of such borrowing, such submission date, is called the “Quotation
Date”).
Except as
otherwise provided in this Section 2.03(b), no Competitive Bid Quote Request
shall be given within five Business Days (or such other number of days as the
Company and the Administrative Agent may agree) of any other Competitive Bid
Quote Request.
(c) (i) Each
Lender may submit one or more Competitive Bid Quotes, each constituting an offer
to make a Competitive Bid Loan in response to any Competitive Bid Quote Request;
provided that, if the Company’s request under Section 2.03(b) hereof
specified more than one Interest Period, such Lender may make a single
submission containing one or more Competitive Bid Quotes for each such Interest
Period. Each Competitive Bid Quote must be submitted to the Administrative Agent
not later than (x) 2:00 p.m. New York time on the fourth Business Day prior
to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) 10:00 a.m. New York time on the Quotation Date, in the case of an
Absolute Rate Auction (or, in any such case, such other time and date as the
Company and the Administrative Agent, with the consent of the Required Lenders,
may agree); provided that any Competitive Bid Quote may be submitted by JPMCB
(or its lending office) only if JPMCB (or such lending office) notifies the
Company of the terms of the offer contained therein not later than (x) 1:00 p.m.
New York time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 9:45 a.m. New York time on the
Quotation Date, in the case of an Absolute Rate Auction. Subject to Sections
5.02, 5.03, 6.02 and 9 hereof, any Competitive Bid Quote so made shall be
irrevocable except with the consent of the Administrative Agent given on the
instructions of the Company.
(ii) Each
Competitive Bid Quote shall be substantially in the form of Exhibit C hereto and
shall specify:
(A) the
proposed date of borrowing and the Interest Period therefor;
(B) the
principal amount of the Competitive Bid Loan for which each such offer is being
made, which principal amount shall be at least $10,000,000 (or a larger multiple
of $1,000,000); provided that the aggregate principal amount of all Competitive
Bid Loans for which a Lender submits Competitive Bid Quotes (x) may be greater
or less than the Commitment of such Lender but (y) may not exceed the principal
amount of the Competitive Bid Borrowing for a particular Interest Period for
which offers were requested;
(C) in the
case of a LIBOR Auction, the margin above or below the applicable Eurodollar
Rate (the “LIBO Margin”) offered for each such Competitive Bid Loan (expressed
as a percentage rate per annum in the form of a decimal to no more than four
decimal places) to be added to or subtracted from the applicable Eurodollar
Rate;
(D) in the
case of an Absolute Rate Auction, the rate of interest per annum (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) offered for each such Competitive Bid Loan (the “Absolute Rate”);
and
(E) the
identity of the quoting Lender.
Unless
otherwise agreed by the Administrative Agent and the Company, no Competitive Bid
Quote shall contain qualifying, conditional or similar language or propose terms
other than or in addition to those set forth in the applicable Competitive Bid
Quote Request and, in particular, no Competitive Bid Quote may be conditioned
upon acceptance by the Company of all (or some specified minimum) of the
principal amount of the Competitive Bid Loan for which such Competitive Bid
Quote is being made, provided that the submission by any Lender containing more
than one Competitive Bid Quote may be conditioned on the Company not accepting
offers contained in such submission that would result in such Lender making
Competitive Bid Loans pursuant thereto in excess of a specified aggregate amount
(the “Competitive Bid Loan Limit”).
(d) The
Administrative Agent shall (x) in the case of an Absolute Rate Auction, as
promptly as practicable after the Competitive Bid Quote is submitted (but in any
event not later than 10:15 a.m. New York time on the Quotation Date) or
(y) in the case of a LIBOR Auction, by 4:00 p.m. New York time on the
day a Competitive Bid Quote is submitted, notify the Company of the terms
(i) of any Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.03(c) hereof and (ii) of any Competitive Bid
Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent’s notice to the Company shall
specify (A) the aggregate principal amount of the Competitive Bid Borrowing
for which offers have been received and (B) the respective principal
amounts and LIBO Margins or Absolute Rates, as the case may be, so offered by
each Lender (identifying the Lender that made each Competitive Bid
Quote).
(e) Not later
than 11:00 a.m. New York time on (x) the third Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) the Quotation
Date, in the case of an Absolute Rate Auction (or, in any such case, such other
time and date as the Company and the Administrative Agent, with the consent of
the Required Lenders, may agree), the Company shall notify the Administrative
Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) hereof (which notice shall specify the aggregate
principal amount of offers from each Lender for each Interest Period that are
accepted, it being understood that the failure of the Company to give such
notice by such time shall constitute nonacceptance) and the Administrative Agent
shall promptly notify each affected Lender. The notice from the Administrative
Agent shall also specify the aggregate principal amount of offers for each
Interest Period that were accepted and the lowest and highest LIBO Margins or
Absolute Rates that were accepted for each Interest Period. The Company may
accept any Competitive Bid Quote in whole or in part (provided that any
Competitive Bid Quote accepted in part shall be at least $5,000,000 or a larger
multiple of $1,000,000); provided that:
(i) the
aggregate principal amount of each Competitive Bid Borrowing may not exceed the
applicable amount set forth in the related Competitive Bid Quote
Request;
(ii) the
aggregate principal amount of each Competitive Bid Borrowing shall be at least
$10,000,000 (or a larger multiple of $1,000,000) but shall not cause the limits
specified in Section 2.03(a) hereof to be violated;
(iii) acceptance
of offers may, subject to clause (v) below, be made only in ascending order of
LIBO Margins or Absolute Rates, as the case may be, in each case beginning with
the lowest rate so offered;
(iv) the
Company may not accept any offer where the Administrative Agent has advised the
Company that such offer fails to comply with Section 2.03(c)(ii) hereof or
otherwise fails to comply with the requirements of this Agreement (including,
without limitation, Section 2.03(a) hereof);
(v) the
aggregate principal amount of each Competitive Bid Borrowing from any Lender may
not exceed any applicable Competitive Bid Loan Limit of such
Lender.
If offers
are made by two or more Lenders with the same LIBO Margins or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Company among such Lenders as nearly as
possible (in amounts of at least $5,000,000 or larger multiples of $1,000,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Company of the amounts of Competitive Bid Loans shall be conclusive in
the absence of manifest error.
(f) Any
Lender whose offer to make any Competitive Bid Loan has been accepted in
accordance with the terms and conditions of this Section 2.03 shall, not later
than 1:00 p.m. New York time on the date specified for the making of such Loan,
make the amount of such Loan available to the Administrative Agent at an account
designated by the Administrative Agent, in immediately available funds, for
account of the Company. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Company on such date by depositing the same, in immediately available
funds, in an account of the Company maintained with JPMCB at its principal
office designated by the Company.
(g) Except
for the purpose and to the extent expressly stated in Section 2.05(b) hereof,
the amount of any Competitive Bid Loan made by any Lender shall not constitute a
utilization of such Lender’s Commitment.
SECTION
2.04. Swingline
Loans.
(a) In
addition to the Loans provided for in Sections 2.01 and 2.03 hereof, the
Swingline Lender hereby agrees, on the terms and conditions of this Agreement,
to make loans (“Swingline Loans”) to the Company during the period from the
Closing Date to but excluding the date five Business Days prior to the Maturity
Date in an aggregate amount at any one time outstanding up to but not exceeding
its Swingline Commitment; provided that the aggregate principal amount of all
Loans (including Swingline Loans) and the LC Exposure shall not at any time
outstanding exceed the aggregate amount of the Commitments. Subject to the terms
of this Agreement, the Company may borrow, repay and reborrow the amount of the
Swingline Commitment by means of Loans that bear interest at the Base Rate;
provided that only one Swingline Loan may be outstanding at any one time and no
Swingline Loan may be borrowed to repay an outstanding Swingline
Loan.
(b) The
Company shall give the Administrative Agent (which shall promptly notify the
Swingline Lender) notice of each borrowing of Swingline Loans hereunder as
provided in Section 4.05 hereof. Not later than one hour after such notice on
the date specified for each borrowing of Swingline Loans hereunder, the
Swingline Lender shall make available the amount of the Swingline Loan to be
made by it on such date to the Administrative Agent, at an account in New York
designated by the Administrative Agent, in Dollars and immediately available
funds, for account of the Company. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made
available by the Administrative Agent to the Company by depositing the same, in
immediately available funds, in an account of the Company designated by the
Company.
(c) Unless
the Company has already given a notice of borrowing of Syndicated Loans to repay
a Swingline Loan, at any time from and including the date of such Swingline Loan
until the unpaid principal amount of such Swingline Loan shall have been paid in
full, the Swingline Lender may, and the Company hereby irrevocably authorizes
and empowers (which power is coupled with an interest) the Swingline Lender to,
deliver, on behalf of the Company, to the Administrative Agent under Section
2.02 hereof a notice of borrowing of Syndicated Loans that are Base Rate Loans
in an amount equal to the then unpaid principal amount of such Swingline Loan.
In the event that the power of the Swingline Lender to give such notice of
borrowing on behalf of the Company is terminated for any reason whatsoever
(including, without limitation, a termination resulting from the occurrence of
an event specified in clause (f) or (g) of Article 9 hereof with respect to the
Company), or the Swingline Lender is otherwise precluded for any reason
whatsoever from giving a notice of borrowing on behalf of the Company as
provided in the preceding sentence, each Lender shall, upon notice from the
Swingline Lender given at any time from and including the date of such Swingline
Loan until the unpaid principal amount of such Swingline Loan shall have been
paid in full, promptly purchase from the Swingline Lender a participation in
(or, if and to the extent specified by the Swingline Lender, an assignment of)
such Swingline Loan in the amount of the Base Rate Loan it
would
have been obligated to make pursuant to such notice of borrowing. Each Lender
shall, not later than 4:00 p.m. New York time on the Business Day on which such
notice is given (if such notice is given by 3:00 p.m. New York time) or 9:00
a.m. New York time on the next succeeding Business Day (if such notice is given
after 3:00 p.m., but before 5:00 p.m., New York time), make available the amount
of the Base Rate Loan to be made by it (or the amount of the participation or
assignment to be purchased by it, as the case may be) to the Administrative
Agent at the account specified in Section 2.02 hereof and the amount so received
by the Administrative Agent shall promptly be made available to the Swingline
Lender by remitting the same, in immediately available funds, to the Swingline
Lender. Promptly following its receipt of any payment in respect of such
Swingline Loan, the Swingline Lender shall pay to each Lender that has acquired
a participation in such Swingline Loan such Lender’s proportionate share of such
payment. Anything in this Agreement to the contrary notwithstanding (including,
without limitation, in Section 6.02 hereof), the obligation of each Lender to
make its Base Rate Loan (or purchase its participation in or assignment of such
Swingline Loan, as the case may be) pursuant to this Section 2.04(c) is
unconditional under any and all circumstances whatsoever and shall not be
subject to set-off, counterclaim or defense to payment that such Lender may have
or have had against the Company, the Administrative Agent, the Swingline Lender
or any other Lender and, without limiting any of the foregoing, shall be
unconditional irrespective of (i) the occurrence of any Default, (ii) the
financial condition of the Company, any Subsidiary, the Administrative Agent,
the Swingline Lender or any other Lender or (iii) the termination or
cancellation of the Commitments; provided that no Lender shall be obligated to
make any such Base Rate Loan (or to purchase any such participation or direct
interest in the Swingline Loan) if (i) before the making of such Swingline Loan,
such Lender had notified the Swingline Lender that a Default had occurred and
was continuing and that such Lender would not refinance such Swingline Loan or
(ii) to the extent (and only to the extent) that such Swingline Loan, together
with all Syndicated Loans and Competitive Bid Loans then outstanding at the time
of the making of such Swingline Loan, exceeded the then aggregate amount of the
Commitments at the time of the making of such Swingline Loan. The Company agrees
that any Lender so purchasing a participation (or assignment) in such Swingline
Loan may exercise all rights of set-off, bankers’ lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender were a
direct holder of a Swingline Loan in the amount of such
participation.
SECTION
2.05. Termination
and Reduction of Commitments.
(a) Unless
previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The
Company shall have the right at any time or from time to time (i) so long as no
Syndicated Loans, Competitive Bid Loans, Swingline Loans or Letters of Credit
are outstanding, to terminate the Commitments and (ii) to reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include (A) the aggregate principal amount of all Competitive Bid
Loans, (B) the aggregate principal amount of all Swingline Loans and (C) the
aggregate Revolving Credit Exposure); provided that (x) the Company shall give
notice of each such termination or reduction as provided in Section 4.05 hereof
and (y) each partial reduction shall be in an aggregate amount at least equal to
$10,000,000 (or whole multiples thereof).
(c) The
Company shall have the right to terminate or reduce the unused amount of the
Swingline Commitment at any time or from time to time on not less than three
Business Days’ prior notice to the Administrative Agent (which shall promptly
notify the Swingline Lender and each Lender) or each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which shall be in integral multiples of $10,000,000) and
shall be irrevocable and effective only upon receipt by the Administrative
Agent.
(d) The
Commitments and the Swingline Commitment, once terminated or reduced as provided
in this Section 2.05, may not be reinstated except pursuant to Section 2.11
hereof.
SECTION
2.06. Facility
Fee; Utilization Fee; Letter of Credit Fees. (a) The
Company shall pay to the Administrative Agent for account of each Lender a
facility fee on the daily average amount of such Lender’s Commitment (whether
used or unused), for the period from and including the Closing Date to but not
including the earlier of the date such Commitment is terminated and the Maturity
Date, at a rate per annum equal to the Applicable Facility Fee Rate. Accrued
facility fees shall be payable in arrears on each Quarterly Date and on the
earlier of the date the Commitments are terminated and the Maturity
Date.
(b) The
Company shall pay to the Administrative Agent for the account of each Lender a
utilization fee on the daily average amount of such Lender’s Revolving Credit
Exposure for each fiscal quarter of the Company during which the Lenders’
aggregate Revolving Credit Exposure is greater than or equal to 50% of the
Lenders’ aggregate Commitments, at a rate per annum equal to the Applicable
Utilization Fee Rate. Accrued utilization fees shall be payable in arrears on
each Quarterly Date and on the earlier of the date the Commitments are
terminated and the Maturity Date.
(c) The
Company agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue at a rate equal to the Applicable Margin on the
average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) from the Closing Date hereof to,
but excluding the later of the date on which such Lender’s Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to
each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Company and such Issuing Bank, such
rate or rates not to exceed 0.125% per annum, on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from the Closing Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including each Quarterly Date of each year shall be payable
on the third Business Day following such Quarterly Date, commencing on the first
such date to occur after the Closing Date; provided that all such fees shall be
payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to any Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
SECTION
2.07. Lending
Offices. The
Loans of each Type made by each Lender shall be made and maintained at such
Lender’s lending office for Loans of such Type.
SECTION
2.08. Several
Obligations; Remedies Independent. The
failure of any Lender to make any Loan to be made by it on the date specified
therefor or perform any LC Obligation shall not relieve any other Lender of its
obligation to make its Loan or perform its LC Obligations on such date, but
neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made, or to perform an LC
Obligation to be performed, by such other Lender, and (except as otherwise
provided in Section 4.06 hereof) no Lender shall have any obligation to the
Administrative Agent or any other Lender for the failure by such Lender to make
any Loan required to be made, or to perform any LC Obligation to be performed,
by such Lender. The amounts payable by the Company at any time hereunder and
under the Notes to each Lender shall be a separate and independent debt and each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and the Notes, and it shall not be necessary for any other Lender or
the Administrative Agent to consent to, or be joined as an additional party in,
any proceedings for such purposes.
SECTION
2.09. Evidence
of Debt.
(a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Company to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(b) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of each Letter of Credit issued
hereunder by an Issuing Bank, (iii) the amount of any principal or interest or
the amount of any reimbursement obligation with respect to any LC Disbursement,
in each case due and payable or to become due and payable from the Company to
each Lender hereunder and (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.
(c) The
entries made in the accounts maintained pursuant to paragraph (a) or (b) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the
failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Company to repay
the Loans in accordance with the terms of this Agreement.
(d) Any
Lender, including the Swingline Lender, may request that Loans made by it be
evidenced by a promissory note. In such event, the Company shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 11.06(b)) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein.
SECTION
2.10. Optional
Prepayments and Conversions or Continuations of Loans.
(a) Subject
to Sections 4.04 and 5.04 hereof, the Company shall have the right to prepay
Syndicated Loans or Swingline Loans or to Convert Syndicated Loans of one Type
into Syndicated Loans of another Type or Continue Syndicated Loans of one Type
as Syndicated Loans of the same Type at any time or from time to time, provided
that (i) the Company shall give the Administrative Agent notice of each such
prepayment or Conversion or Continuation as provided in Section 4.05 hereof
(and, upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder), (ii) if any Swingline Loan is
outstanding, the Syndicated Loans may not be prepaid or Converted and (iii)
Swingline Loans may not be Continued.
(b) No
Competitive Bid Loan may be prepaid without the consent of the Lender holding
such Competitive Bid Loan.
(c) Notwithstanding
the foregoing provisions of this Section 2.10, and without limiting the rights
and remedies of the Lenders under Article 9 hereof, in the event that any Event
of Default shall have occurred and be continuing, the Administrative Agent may
(and at the request of the Required Lenders, shall) suspend the right of the
Company to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a
Eurodollar Loan, in which event all Loans shall be Converted (on the last day of
the respective Interest Period therefor) or Continued, as the case may be, as
Base Rate Loans.
SECTION
2.11. Increase
in Commitments.
(a) Subject
to Section 4.05, in the event that the Company wishes, at any time or from time
to time, to increase the aggregate amount of the Commitments, it shall notify
the Administrative Agent in writing of the amount (the “Offered Increase
Amount”) of such proposed increase (such notice, a “Commitment Increase
Notice”). The Company may, at its election, (i) offer one or more of the Lenders
the opportunity to participate in all or a portion of the Offered Increase
Amount pursuant to subsection (c) below and/or (ii) with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld), offer
one or more additional banks, financial institutions or other entities (each, an
“Additional Lender”) the opportunity to participate in all or a portion of the
Offered Increase Amount which Lenders and/or Additional Lenders the Company
desires to participate in such Commitment increase. The Company or, if requested
by the Company, the Administrative Agent will notify such Lenders and/or
Additional Lenders of such offer.
(b) Any
Additional Lender which the Company selects to offer participation in the
increased Commitments and which elects to become a party to this Agreement and
obtain a Commitment in an amount so offered and accepted by it pursuant to
Section 2.11(a)(ii) hereof shall become a Lender for all purposes and the same
extent as if originally a party hereto and shall be bound by and entitled to the
benefits of this Agreement, and Schedule I shall be deemed to be amended to add
the name and Commitment of such Additional Lender (and the Administrative Agent
shall deliver to the Lenders a copy of the Schedule I as amended as soon as
practicable), provided that the Commitment of any such Additional Lender shall
be in an amount not less than $10,000,000.
(c) Any
Lender which accepts an offer to it by the Company to increase its Commitment
pursuant to Section 2.11(a)(i) hereof shall be bound by and entitled to the
benefits of this Agreement with respect to the full
amount of
its Commitment as so increased, and Schedule I shall be deemed to be amended to
so increase the Commitment of such Lender.
(d) If any
Additional Lender becomes a Lender pursuant to Section 2.11(b) hereof or any
Lender’s Commitment is increased pursuant to Section 2.11(c) hereof, additional
Syndicated Loans made on or after the effectiveness thereof (the “Re-Allocation
Date”) shall be made pro rata based on the Commitment Percentages in effect on
and after such Re-Allocation Date (except to the extent that any such pro rata
borrowings would result in any Lender making an aggregate principal amount of
Syndicated Loans in excess of its Commitment, in which case such excess amount
will be allocated to, and made by, such Additional Lenders and/or Lenders with
such increased Commitments to the extent of, and pro rata based on, their
respective Commitments otherwise available for Syndicated Loans), and
continuations of Eurodollar Loans outstanding on such Re-Allocation Date shall
be effected by repayment of such Eurodollar Loans on the last day of the
Interest Period applicable thereto and the making of new Eurodollar Loans pro
rata based on such new Commitments; provided that until such date after the
Re-Allocation Date as all the Syndicated Loans outstanding shall be held pro
rata by all the Lenders (including the Additional Lenders), the Company shall
only request Interest Periods that end on or before the last day of the last
Interest Period for Syndicated Loans existing on the Re-Allocation Date. In the
event that on any such Re-Allocation Date there is an unpaid principal amount of
Base Rate Loans, the Borrower shall make prepayments thereof and borrowings of
Base Rate Loans so that, after giving effect thereto, the Base Rate Loans
outstanding are held pro rata based on such new Commitments. In the event that
on any such Re-Allocation Date there is an unpaid principal amount of Eurodollar
Loans, such Eurodollar Loans may remain outstanding with the respective holders
thereof only until the earlier of (i) the expiration of their respective
Interest Periods and (ii) the date on which such Eurodollar Loans may be prepaid
hereunder without any amounts becoming payable pursuant to Section 5.04 hereof;
and interest on and repayments of such Eurodollar Loans will be paid thereon to
the respective Lenders holding such Eurodollar Loans pro rata based on the
respective principal amounts thereof outstanding.
(e) Notwithstanding
the foregoing, no increase in the aggregate Commitments hereunder pursuant to
this Section 2.11 shall be effective unless:
(i) each
Additional Lender prior to becoming a Lender hereunder shall have entered into
an agreement in form and substance satisfactory to the Company and the
Administrative Agent pursuant to which such Additional Lender undertakes a
Commitment, and upon the effectiveness of such agreement, the date of the
effectiveness of any such agreement being hereinafter referred to as the
“Increased Commitment Date”), such Additional Lender shall be a “Lender” for all
purposes of this Agreement;
(ii) the
Company shall have given the Administrative Agent notice of such increase at
least three Business Days prior to the relevant Increased Commitment
Date;
(iii) no
increase in the Commitments hereunder shall result in the aggregate amount of
the Commitments exceeding $900,000,000;
(iv) no
Lender’s Commitment shall be increased without the prior express written consent
of such Lender;
(v) no
Default shall have occurred and be continuing on and as of the date of the
notice referred to in clause (ii) above or on such Increased Commitment
Date;
(vi) there
shall not have occurred any ratable reduction of the Commitments pursuant to
Section 2.05(b) hereof on or within the twelve month period immediately prior to
such Increased Commitment Date;
(vii) after
giving effect to such increase in Commitments, no one Lender’s Commitment would
exceed 20% of the aggregate amount of the Commitments; and
(viii) the
Administrative Agent shall have received (with sufficient copies for each
Lender), each of which shall be satisfactory to the Administrative Agent,
certified copies of Board of Director resolutions authorizing such increase and
an opinion of counsel of the Company with respect to such increase.
SECTION
2.12. Extension
of Maturity Date.
(a) The
Company may, by notice to the Administrative Agent (which shall promptly notify
the Lenders) not less than 60 days and not more than 90 days prior to any
anniversary of the Closing Date, request that the Lenders extend the Maturity
Date then in effect (the “Existing Maturity Date”) for an additional year or two
years from the Existing Maturity Date; provided that, no such extension shall
extend the Maturity Date beyond the sooner to occur of (i) the date five years
after such anniversary or (ii) the seventh anniversary of the Closing Date. Each
Lender, acting in its sole discretion, shall, by notice to the Company and the
Administrative Agent given on or prior to the date (herein, the “Consent Date”)
that is 30 days prior to the relevant anniversary (except that, if such date is
not a Business Day, such notice shall be given on the next succeeding Business
Day), advise the Company whether or not such Lender agrees to such extension;
provided that each Lender that determines not to extend the Maturity Date (a
“Non-extending Lender”) shall notify the Administrative Agent (which shall
notify the Lenders) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Lender that does not advise the
Company on or before the Consent Date shall be deemed to be a Non-extending
Lender. The election of any Lender to agree to such extension shall not obligate
any other Lender to so agree.
(b) The
Company shall have the right on or before the relevant anniversary to replace
each Non-extending Lender with, and otherwise add to this Agreement, one or more
other banks (which may include any Lender, each prior to the Existing Maturity
Date an “Additional Commitment Lender”) with (in the case of any Additional
Commitment Lender that is not already a Lender) the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), each
of which Additional Commitment Lenders shall have entered into an agreement in
form and substance satisfactory to the Company and the Administrative Agent
pursuant to which such Additional Commitment Lender shall, effective as of the
relevant anniversary, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in addition to
such Lender’s Commitment hereunder on such date).
(c) If (and
only if) the total of the Commitments of the Lenders that have agreed so to
extend the Maturity Date and the additional Commitments of the Additional
Commitment Lenders shall be at least 100% of the aggregate amount of the
Commitments in effect immediately prior to the Consent Date, then, effective as
of the relevant anniversary, the Existing Maturity Date shall be extended as
requested under, and subject to the provisions of, the first sentence of
paragraph (a) above (except that, if the date on which the Maturity Date is to
be extended is not a Business Day, such Maturity Date as so extended shall be
the next preceding Business Day) and each Additional Commitment Lender shall
thereupon become a “Lender” for all purposes of this Agreement (and the
Administrative Agent shall notify the Lenders of the extension).
(d) Notwithstanding
the foregoing, the extension of the Existing Maturity Date shall not be
effective unless:
(i) no
Default shall have occurred and be continuing on each of the date of the notice
requesting such extension, on the Consent Date and on the relevant anniversary
date;
(ii) each of
the representations and warranties made by the Company in Section 7 hereof shall
be true and complete on and as of each of the date of the notice requesting such
extension, the Consent Date and the relevant anniversary date with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(iii) each
Non-extending Lender shall have been paid in full all amounts owing to such
Lender hereunder on or before the relevant anniversary date.
SECTION
2.13. Letters
of Credit.
(a) Subject
to the terms and conditions set forth herein, the Company may request the
issuance of Letters of Credit for its own account (or in the name of another
Person as applicant, with the consent of the Issuing Bank, such consent not to
be unreasonably withheld, provided that either (x) such Letter of Credit states
by its terms that the Company remains the account party liable to reimburse the
Issuing Bank for all drawings under said Letter of Credit, or (y) such other
Person, the Company and the Issuing Bank shall enter into documentation
acceptable to the Issuing Bank and the Administrative Agent providing that the
Company is liable in all events to reimburse the Issuing Bank for all drawings
under said Letter of Credit) in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
prior to the Maturity Date. In the event of any inconsistency between the terms
and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Company to, or
entered into by the Company with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Company shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Company also shall submit a letter of credit application in a form to be
agreed upon by the Company and the Issuing Bank in connection with any request
for a Letter of Credit, provided that to the extent that any term or condition
contained in such letter of credit application shall conflict in any respect
with any term or condition contained herein, the terms and conditions hereof
shall be controlling, and provided further that the terms and conditions set
forth in such letter of credit application shall be no less favorable to the
Company than those set forth herein. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $75,000,000 and (ii) the
aggregate principal amount of all Revolving Credit Exposure together with the
aggregate principal amount of all Competitive Bid Loans and Swingline Loans at
any one time outstanding shall not exceed the aggregate amount of the Lenders’
Commitments at such time.
(c) Each
Letter of Credit shall expire at or prior to the close of business on the date
that is five Business Days prior to the Maturity Date.
(d) By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) and without any further action on the part of the Issuing
Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s pro rata percentage (based upon such Lender’s
Commitment in relation to the aggregate Commitments of all of the Lenders as of
such date) (its “Pro Rata Percentage”) of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender’s Pro
Rata Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Company on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Company
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire a participation pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. The
Administrative Agent shall promptly notify each Lender of any issuance,
amendment, renewal or extension of any Letter of Credit. Such notice shall
include the amount, beneficiary, issuance date and expiration date of such
Letter of Credit, and the applicable Lender's Pro Rata Percentage of such Letter
of Credit.
(e) If the
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
the Company shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, New
York City time on (i) the Business Day that the Company receives such notice, if
such notice is received prior to 10:00 a.m. , New York City time, on the day of
receipt, or (ii) the Business Day immediately following the day that the Company
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that, if such LC Disbursement is not less than $50,000,
unless otherwise specified to the Administrative Agent by the Company, the
Company shall be deemed to have requested, subject to the conditions to
borrowing set forth herein, in accordance with Sections 2.02 and 4.05 prior to
11:00 a.m., New York City time, on the date that such LC Disbursement is made,
that such payment be financed with a Base Rate Loan in an equivalent amount and,
to the extent so financed, the Company’s obligation to make such payment shall
be discharged and replaced by the resulting Base Rate Loan. If the Company fails
to make such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Company in
respect thereof and such Lender’s Pro Rata Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Pro Rata Percentage of the payment then due from the Company, in the
same manner as provided in Section 2.02 with respect to Loans made by such
Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of Base Rate Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Company of its obligation to
reimburse such LC Disbursement.
(f) The
obligations of the Company to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
under all circumstances whatsoever, including without limitation the following:
(i) the existence of any claim, set-off, defense or other rights which the
Company or any other Person may have at any time against any beneficiary of any
Letter of Credit or any transferee of a Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the Issuing Bank,
the Administrative Agent, the Lenders or any other Person, whether in connection
with this Agreement or any unrelated transaction; (ii) the failure by the
Issuing Bank to honor any drawing under a Letter of Credit or to make any
payment demanded under any Letter of Credit on the ground that the demand for
such payment does not conform to the terms and conditions of such Letter of
Credit; and (iii) any circumstances which might constitute a legal or equitable
discharge of any obligations hereunder, it being agreed that the Company’s
obligations hereunder shall not be discharged except by the performance thereof
strictly in accordance with the terms of this Agreement including, without
limitation, the payment in full as herein provided of all amounts owing
hereunder in respect of Letters of Credit. Neither the Administrative Agent, the
Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company that
are caused by the Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either (x)
accept and make payment upon such documents without responsibility for further
investigation, unless a Responsible Officer of the Issuing Bank has actually
received written notice to the contrary from the Company, or (y) refuse to
accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit. In no event shall any Lender
or the Administrative Agent be required to pay, reimburse or otherwise indemnify
the Issuing Bank for any loss, costs, liabilities or expenses incurred by the
Issuing
Bank in
connection with its issuance or maintenance of any Letter of Credit hereunder
except to the extent expressly set forth in this Agreement. The immediately
preceding sentence shall survive the termination of this
Agreement.
(g) The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the Company
by telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Company
of its obligation to reimburse the Issuing Bank and the Lenders with respect to
any such LC Disbursement.
(h) If the
Issuing Bank shall make any LC Disbursement, then, unless the Company shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the Company
reimburses such LC Disbursement, at the rate per annum then applicable to Base
Rate Loans; provided that, if the Company fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then interest
shall be due and payable at the Post-Default Rate for each day such
reimbursement is not received by the Administrative Agent. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) The
Issuing Bank for any Letter of Credit may be replaced at any time by written
agreement among the Company, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent shall notify the
Lenders of any such replacement of the Issuing Bank. At the time any such
replacement shall become effective, the Company shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.06(c). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed, with respect to the relevant Letter of Credit, to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
(j) If any
Event of Default shall occur and be continuing, on the Business Day that the
Company receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 51% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Company shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Company described in clause (f) or (g) of Article 9. Such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Company under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Company’s risk
and expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Company for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Company under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived. To the extent that all, or any
portion of the Lenders’ LC Exposure with respect to any Letter of Credit is
reduced by means of expiration of such Letter of Credit or by virtue of any
provision
in any Letter of Credit permanently reducing the amounts available to be drawn
thereunder for any reason, the Administrative Agent shall return an amount to
the Company equal to the amount of such reduction no later than 90 days after
the date of such reduction. The Company hereby grants to the Administrative
Agent a security interest in any cash collateral deposited pursuant to the terms
of this Section 2.13(j) and this Agreement shall be deemed to be a security
agreement for all purposes of the Uniform Commercial Code in effect in all
applicable jurisdictions; provided that no UCC-1 or similar financing statement
shall be filed in connection with this Agreement in any jurisdiction, without
the Company’s prior written consent.
(k) The
provisions of this Section 2.13 shall not limit the right of the Company to
obtain letters of credit other than pursuant to this Agreement.
ARTICLE
III
Payments
of Principal and Interest.
SECTION
3.01. Repayment
of Loans.
(a) The
Company hereby promises to pay to the Administrative Agent for account of each
Lender the principal of each Syndicated Loan made by such Lender, and each
Syndicated Loan shall mature, on the Maturity Date.
(b) The
Company agrees to pay to the Administrative Agent for account of each Lender
that makes a Competitive Bid Loan the principal of such Competitive Bid Loan,
and such Competitive Bid Loan shall mature, on the last day of the Interest
Period for such Competitive Bid Loan.
(c) The
Company hereby promises to pay to the Administrative Agent for account of the
Swingline Lender the principal of each Swingline Loan at or prior to, and such
Swingline Loan shall mature at, 1:00 p.m. New York time on the Swingline
Maturity Date for such Swingline Loan.
SECTION
3.02. Interest. (a) The
Company hereby promises to pay to the Administrative Agent for account of each
Lender interest on the unpaid principal amount of each Loan made by such Lender
for the period from and including the date of such Loan to but excluding the
date such Loan shall be paid in full, at the following rates per
annum:
(i) if such
Loan is a Base Rate Loan, the Base Rate (as in effect from time to
time);
(ii) if such
Loan is a Eurodollar Loan, the Eurodollar Rate for such Loan for the Interest
Period therefor plus the Applicable Margin;
(iii) if such
Loan is a Swingline Loan, the Base Rate for each day during the period from and
including the date of such Swingline Loan to but excluding the Swingline
Maturity Date for such Swingline Loan;
(iv) if such
Loan is a LIBOR Bid Loan, the Eurodollar Rate for such Loan for the Interest
Period therefor plus (or minus) the LIBO Margin quoted by the Lender making such
Loan in accordance with Section 2.03 hereof; and
(v) if such
Loan is an Absolute Rate Loan, the Absolute Rate for such Loan for the Interest
Period therefor quoted by the Lender making such Loan in accordance with
Section 2.03 hereof.
(b) Notwithstanding
the foregoing, the Company hereby promises to pay to the Administrative Agent
for account of each Lender interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender and on any other amount payable by the
Company hereunder or under the Notes, if any, held by such Lender to or for
account of such Lender, that shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the due date thereof to but
excluding
the date the same is paid in full. Accrued interest on each Loan shall be
payable on the last day of the Interest Period therefor and, if such Interest
Period is longer than 90 days (in the case of an Absolute Rate Loan) or three
months (in the case of a Fixed Rate Loan), at 90-day or three-month intervals,
respectively, following the first day of such Interest Period, provided that (i)
interest on Base Rate Loans shall be payable on each Quarterly Date and on the
Maturity Date and (ii) interest on Swingline Loans shall be payable on the
Swingline Maturity Date therefor and (b) in the case of any Loan, upon the
payment or prepayment thereof (but only on the principal amount so paid or
prepaid), except that interest payable at the Post-Default Rate shall be payable
from time to time on demand. Promptly after the determination of any interest
rate provided for herein or any change therein, the Administrative Agent shall
give notice thereof to the Lenders to which such interest is payable and to the
Company.
ARTICLE
IV
Payments;
Pro Rata Treatment; Computations; Etc.
SECTION
4.01. Payments.
(a) Except to
the extent otherwise provided herein, all payments of principal, interest,
reimbursement of LC Disbursements, fees and other amounts to be made by the
Company under this Agreement and the Notes, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at an account designated by the Administrative Agent not
later than 1:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day), provided that if a new
Loan is to be made by any Lender on a date the Company is to repay any principal
of an outstanding Loan of such Lender, such Lender shall apply the proceeds of
such new Loan to the payment of the principal to be repaid and only an amount
equal to the difference between the principal to be borrowed and the principal
to be repaid shall be made available by such Lender to the Administrative Agent
as provided in Section 2.02 hereof or paid by the Company to the Administrative
Agent pursuant to this Section 4.01, as the case may be.
(b) The
Company shall, at the time of making each payment under this Agreement or any
Note for account of any Lender, specify to the Administrative Agent (which shall
so notify the intended recipient(s) thereof) the Loans or other amounts payable
by the Company hereunder to which such payment is to be applied (and in the
event that the Company fails to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent shall distribute such
payment, subject to Section 4.02 hereof, first to the Swingline Lender (to the
extent any amounts are then due and payable to the Swingline Lender on account
of any Swingline Loan) and then to the Lenders for application in such manner as
the Administrative Agent may determine to be appropriate).
(c) Each
payment received by the Administrative Agent under this Agreement or any Note
for account of any Lender shall be paid by the Administrative Agent promptly to
such Lender, in immediately available funds, for account of such Lender’s
lending office for the Loan or other obligation in respect of which such payment
is made.
(d) If the
due date of any payment under this Agreement or any Note would otherwise fall on
a day that is not a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any principal so
extended for the period of such extension.
SECTION
4.02. Pro
Rata Treatment. Except
to the extent otherwise provided herein, (a) each borrowing of Syndicated Loans
from the Lenders under Section 2.01 hereof shall be made from the Lenders, each
payment of facility fee under Section 2.06 hereof shall be made for account of
the Lenders and each termination or reduction of the amount of the Commitments
under Section 2.05 hereof shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
except as otherwise provided in Sections 2.11, 5.02 and 5.03 hereof, Eurodollar
Loans having the same Interest Period shall be allocated pro rata among the
Lenders according to the amounts of their respective Commitments (in the case of
making Loans) or their respective Loans (in the case of Conversions and
Continuation of Loans); (c) each payment or prepayment of principal of
Syndicated Loans by the Company shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by them; and (d) each payment of interest on Syndicated
Loans by the Company shall be made for account of the Lenders pro rata in
accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; and notwithstanding the foregoing, borrowings, payments and
prepayments of Swingline Loans shall be made without regard to the foregoing
provisions of this Section 4.02.
SECTION
4.03. Computations. Interest
on Fixed Rate Loans and all fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which payable, and interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
SECTION
4.04. Minimum
Amounts. Except
for prepayments made pursuant to Section 5.04 hereof, (x) (A) each borrowing and
Conversion of Base Rate Loans shall be in a minimum amount of $1,000,000 and in
an integral multiple of $500,000 (provided that a Base Rate Loan may be in an
aggregate amount that is equal to the entire unused balance of the Lenders’
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.13(e)) and (B) each partial prepayment
of principal of Base Rate Loans shall be in an integral multiple of $1,000,000
and (y) (A) each borrowing of, and Conversion into, Eurodollar Loans shall be in
an aggregate amount at least equal to $5,000,000 or a larger multiple of
$1,000,000 and (B) each partial prepayment of principal of Eurodollar Loans
shall be in an aggregate amount at least equal to $5,000,000 or a larger
multiple of $1,000,000 (borrowings, Conversions or prepayments of or into Loans
of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period), provided that the aggregate principal amount of Eurodollar
Loans having the same Interest Period shall be in an amount at least equal to
$5,000,000 or a larger multiple of $1,000,000 and, if any Eurodollar Loans would
otherwise be in a lesser principal amount for any period, such Loans shall be
Base Rate Loans during such period. Each borrowing or partial prepayment of
Swingline Loans shall be in an integral multiple of $500,000.
SECTION
4.05. Certain
Notices. Except
as otherwise provided in Section 2.03 hereof with respect to Competitive Bid
Loans, notices by the Company to the Administrative Agent of terminations or
reductions of the Commitments and of borrowings, Conversions, Continuations and
optional prepayments of Loans, of Types of Loans and of the duration of Interest
Periods shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time (or 2:00 p.m. in
connection with Swingline Loans) on the number of Business Days prior to the
date of the relevant termination, reduction, borrowing, Conversion, Continuation
or prepayment or the first day of such Interest Period specified
below:
Notice |
Number
of
Business
Days Prior |
|
|
Termination
or reduction of Commitments |
3 |
Borrowing
or prepayment of, or Conversion into, Base Rate Loans |
1 |
Borrowing
or prepayment of, Conversion into, Continuation as or duration of Interest
Period for, Eurodollar Loans |
3 |
Reimbursement
of LC Disbursement by means of borrowing of Base Rate Loan |
Same
day |
Each such
notice of termination or reduction shall specify the amount of the Commitments
to be terminated or reduced. Each such notice of borrowing, Conversion,
Continuation or optional prepayment shall specify the Loans to be borrowed,
Converted, Continued or prepaid and the amount (subject to Section 4.04 hereof)
and Type of each Loan to be borrowed, Converted, Continued or prepaid and the
date of borrowing, Conversion, Continuation or optional prepayment (which shall
be a Business Day). The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Company fails to
select the Type of Loan, or the duration of
any
Interest Period for any Eurodollar Loan, within the time period and otherwise as
provided in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan)
will be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for such Loan or (if outstanding as a Base Rate
Loan) will remain as, or (if not then outstanding) will be made as, a Base Rate
Loan.
SECTION
4.06. Non-Receipt
of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the Company
(the “Payor”) prior to the date on which the Payor to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the “Required Payment”), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the “Advance Date”) such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the Advance Date, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows:
(i) if the
Required Payment shall represent a payment to be made by the Company to the
Lenders, the Company and the recipient(s) shall each be obligated retroactively
to the Advance Date to pay interest in respect of the Required Payment at the
Post-Default Rate (without duplication of the obligation of the Company under
Section 3.02 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the Required
Payment to the Administrative Agent shall not limit such obligation of the
Company under said Section 3.02 to pay interest at the Post-Default Rate in
respect of the Required Payment and
(ii) if the
Required Payment shall represent proceeds of a Loan to be made by the Lenders to
the Company, the Payor and the Company shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required Payment pursuant to
whichever of the rates specified in Section 3.02 hereof is applicable to the
Type of such Loan, it being understood that the return by the Company of the
Required Payment to the Administrative Agent shall not limit any claim the
Company may have against the Payor in respect of such Required
Payment.
SECTION
4.07. Sharing
of Payments, Etc.
(a) If any
Lender shall obtain from the Company payment of any principal of or interest on
any Loan of any Class owing to it or payment of any participation in any LC
Disbursement or any other amount under this Agreement through the exercise of
any right of set-off, banker’s lien or counterclaim or similar right or
otherwise (other than from the Administrative Agent as provided herein), and, as
a result of such payment, such Lender shall have received a greater percentage
of the principal of or interest on the Loans of such Class, with respect to such
participation in such LC Disbursement, or such other amounts then due hereunder
by the Company to such Lender than the percentage received by any other Lender,
it shall promptly purchase from such other Lenders participations in (or, of and
to the extent specified by such Lender, direct interests in) the Loans of such
Class, participations in such LC Disbursements or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class, participations
in such LC Disbursements or such other amounts, respectively, owing to each of
the Lenders. To such end all the Lenders shall make appropriate
adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
(b) The
Company agrees that any Lender so purchasing such a participation (or direct
interest) may exercise all rights of set-off, banker’s lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
ARTICLE
V
Yield
Protection, Etc.
SECTION
5.01. Additional
Costs.
(a) It is
understood that the cost to the Lenders of making or maintaining Eurodollar
Loans or participating in, issuing or maintaining Letters of Credit may
fluctuate as a result of the applicability of, or changes in, reserve
requirements imposed by the Board of Governors of the Federal Reserve System of
the United States, including but not limited to, reserve requirements under
Regulation D in connection with Eurocurrency Liabilities (as defined in
Regulation D) at the ratios provided for in Regulation D from time to time. The
Company agrees to pay to each Lender from time to time, as provided in paragraph
(c) below, such amounts as shall be necessary to compensate such Lender for the
portion of the cost of making or maintaining any Eurodollar Loans made by it or
participating in, issuing or maintaining Letters of Credit, resulting from any
such reserve requirements, it being understood that the rates of interest
applicable to Eurodollar Loans hereunder have been determined on the
hypothetical assumption that no such reserve requirements exist or will exist
and that such rates do not reflect costs imposed on such Lender in connection
with such reserve requirements. It is agreed that for purposes of this paragraph
(a) the Eurodollar Loans made hereunder shall be deemed to constitute
Eurocurrency Liabilities (as defined in Regulation D) and to be subject to the
reserve requirements of Regulation D without benefit or credit of proration,
exemptions or offsets which might otherwise be available to such Lender from
time to time under Regulation D.
(b) In the
event that after the Closing Date any change in conditions or in applicable law,
rule or regulations or in the interpretation or administration thereof
(including, without limitation, any request, guideline or policy not having the
force of law) by any authority charged with the administration or interpretation
thereof shall occur which shall:
(i) subject
any Lender to any tax with respect to any Eurodollar Loan (other than any tax on
the overall net income of such Lender imposed by the United States of America or
by the jurisdiction in which such Lender has its principal office or any
political subdivision or taxing authority therein) or with respect to
participating in issuing or maintaining Letters of Credit ; or
(ii) change
the basis of taxation of any payment to any Lender of principal of or interest
on any Eurodollar Loan or with respect to participating in issuing or
maintaining Letters of Credit, or with respect to other fees and amounts payable
hereunder, or any combination of the foregoing; or
(iii) impose,
modify or deem applicable any reserve, deposit, capital adequacy or similar
requirement against any assets held by, deposits with or for the account of or
loans or commitments by, or in respect of participations in or the issuance or
maintenance of Letters of Credit by an office of any Lender; or
(iv) impose
upon any Lender or the London interbank market any other condition with respect
to the Eurodollar Loans or this Agreement;
and the
result of any of the foregoing shall be to increase the actual cost to such
Lender of making or maintaining any Eurodollar Loan hereunder, or of
participating in, issuing or maintaining Letters of Credit or to reduce the
amount of any payment (whether of principal, interest, reimbursement of LC
Disbursements or otherwise) received
or
receivable by such Lender, or to require such Lender to make any payment in
connection with any Eurodollar Loan or in respect of participations in or the
issuance or maintenance of Letters of Credit, or to reduce the rate of return on
capital of such Lender as a consequence of such Lender’s obligations hereunder
to a level below that which such Lender could have achieved but for such change,
in each case by or in an amount which such Lender in its sole judgment shall
deem material, then and in each such case the Company shall pay to such Lender,
as provided in paragraph (c) below (but without duplication of the payments
required under paragraph (a) above), such amounts as shall be necessary to
compensate such Lender for such cost, reduction or payment.
(c) Each
Lender shall deliver to the Company, with a copy to the Administrative Agent,
from time to time one or more certificates setting forth the amounts due under
paragraphs (a) and (b) above, the reserve requirements or changes as a result of
which such amounts are due and the manner of computing such amounts. Each such
certificate shall be conclusive in the absence of manifest error. The Company
shall pay the amounts shown as due on any such certificate within 10 Business
Days after its receipt of the same. No failure on the part of any Lender to
demand compensation under paragraph (a) or (b) above on any one occasion shall
constitute a waiver of its right to demand such compensation on any other
occasion. The protection of this Section 5.01 shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
any law, regulation or other condition which shall give rise to any demand by
such Lender for compensation hereunder; provided, however, that if any Lender
shall receive a reimbursement of any additional tax assessment or other amount
as a result of such contention, such Lender shall remit such reimbursed funds to
the Company to the extent that the Company had paid such amounts to such Lender
less any expenses reasonably incurred by such Lender.
(d) Each
Lender shall notify the Company, with a copy of such notice to the
Administrative Agent, as to the existence of any change described in paragraphs
(a) and (b) above as promptly as practicable after gaining knowledge thereof. If
the Company shall receive notice of such determination from any Lender with
respect to Eurodollar Loans, the Company may either (i) convert such Lender’s
Eurodollar Loans to Base Rate Loans, or (ii) prepay, without premium (but
subject in either case to the payments required by Sections 5.01(a) and (b) and
5.04 hereof), upon at least three Business Days’ prior written or telex notice
to such Lender, but not more than fifteen days after receipt of notice from such
Lender, all such Lender’s Eurodollar Loans outstanding together with interest
and facility fee accrued to the date of prepayment on such amount and the
aggregate Commitments shall be reduced by an amount equal to such Lender’s
Commitment and such Lender’s Commitment shall be reduced to zero.
(e) Any
Lender claiming any additional amounts payable pursuant to paragraph (b) above
shall use its best efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its applicable lending
office so as to eliminate the amount of any such costs or additional amounts
which may thereafter accrue; provided that no such change shall be made if, in
the sole reasonable judgment of such Lender, such change would be
disadvantageous to such Lender.
SECTION
5.02. Limitation
on Types of Loans. In the
event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for any Fixed Rate Loan, any Lender shall
have determined (which determination shall be conclusive and binding upon the
Company absent manifest error) (x) that dollar deposits in the amount of the
principal amount of such Fixed Rate Loan are not generally available in the
London interbank market, or (y) that, in the event that clause (ii) of the
definition of “Eurodollar Rate” in Section 1.01 hereof is the basis for
determining the rate of interest for Fixed Rate Loans for such Interest Period,
the rate at which such dollar deposits are being offered will not adequately and
fairly reflect the cost to such Lender of making or maintaining the principal
amount of such Fixed Rate Loan during such Interest Period, or reasonable means
do not exist for ascertaining the Eurodollar Rate, such Lender shall, as soon as
practicable thereafter, give notice of such determination to the Administrative
Agent and the other Lenders and the Company. If the Company shall receive notice
of such determination, (i) in respect of any such Eurodollar Loan the Company
may either (A) withdraw its request for a Eurodollar Loan from such Lender
and/or (B) request a Base Rate Loan be made by such Lender or (C) terminate the
Commitment of such Lender, and at the end of the then current Interest Period
for each outstanding Loan repay all such Lender’s Loans outstanding together
with interest and facility fee accrued to the date of such payment on such
amount (the aggregate Commitments shall be reduced by an amount equal to such
Lender’s Commitment) and any applicable utilization fee due to such Lender shall
be paid in arrears on the next following Quarterly Date after the date such
Lender’s Commitment has been terminated, and (ii) in respect of any LIBOR Bid
Loan, such Lender’s obligation to make such LIBOR Bid Loan shall be
terminated.
SECTION
5.03. Illegality.
(a) Notwithstanding
anything to the contrary contained elsewhere in this Agreement, if any change
after the Closing Date in law or regulation or in the interpretation thereof by
any governmental authority charged with the administration thereof shall make it
unlawful for a Lender to make or maintain any Fixed Rate Loan or to give effect
to its obligations as contemplated hereby with respect to a Eurodollar Loan,
then, by notice to the Company with a copy to the Administrative Agent, such
Lender may:
(i) declare
that Eurodollar Loans will not thereafter be made by such Lender hereunder,
whereupon such Lender’s pro rata portion of any subsequent Eurodollar Loan shall
instead be a Base Rate Loan, unless such declaration is subsequently
withdrawn;
(ii) require
that all outstanding Eurodollar Loans be Converted to Base Rate Loans, whereupon
all of such Eurodollar Loans shall be automatically Converted to Base Rate Loans
as of the effective date of such notice as provided in paragraph (b) below
(notwithstanding the provisions of Section 2.10 hereof); and
(iii) refuse to
make any LIBOR Bid Loan that it has agreed to make.
(b) For
purposes of this Section 5.03, a notice to the Company by any Lender pursuant to
paragraph (a) above shall be effective, if lawful, and if any Fixed Rate Loans
shall then be outstanding, on the last day of the then current Interest Period;
otherwise, such notice shall be effective on the date of receipt by the
Company.
SECTION
5.04. Compensation. The
Company shall pay to the Administrative Agent for account of each Lender, upon
the request of such Lender through the Administrative Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense that such Lender determines is
attributable to:
(a) any
payment, mandatory or optional prepayment or Conversion of a Fixed Rate Loan or
Absolute Rate Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Article 9 hereof) on a
date other than the last day of the Interest Period for such Loan;
or
(b) any
failure by the Company for any reason (including, without limitation, the
failure of any of the conditions precedent specified in Article 6 hereof to be
satisfied) to borrow a Fixed Rate Loan or Absolute Rate Loan (with respect to
which, in the case of a Competitive Bid Loan, the Company has accepted a
Competitive Bid Quote) from such Lender on the date for such borrowing specified
in the relevant notice of borrowing given pursuant to Section 2.02 or 2.03(b)
hereof.
Without
limiting the effect of the preceding sentence, such compensation shall include
for each Lender on demand an amount equal to any loss incurred or to be incurred
by it in the reemployment of the funds released by any (i) failure of the
Company to accept a Loan following a request therefor; or (ii) prepayment of any
Fixed Rate Loan (whether as a result of a reduction in Commitment or otherwise)
permitted under Section 2.10 hereof or any prepayment or Conversion of such a
Loan required or permitted by any other provision of this Agreement, in each
case if such Loan is prepaid or Converted other than on the last day of the
Interest Period for such Loan. Such loss shall be the excess, if any, as
reasonably determined by each Lender of its cost of obtaining the funds for the
Loan not accepted or being prepaid or Converted over the amount realized by such
Lender reemploying the funds received from the Company’s failure to accept the
Loan, in prepayment or realized from the Loan so Converted, in each case during
the period from the date of such failure, prepayment or Conversion to the end of
the Interest Period of the Loan being requested, prepaid or Converted. Each
Lender shall deliver to the Company from time to time and upon demand by the
Company one or more certificates setting forth the cost of obtaining the funds
for the Loan not accepted or prepaid or Converted and the amount realized by
such Lender in reemploying the funds, received in prepayment or realized from
the Loan so not accepted or Converted.
SECTION
5.05. U.S.
Taxes. Prior to
the date of the initial Loan hereunder, and from time to time thereafter if
requested by the Company, each Lender and the Swingline Lender, in each case if
organized under the laws of a jurisdiction outside the United States, shall
provide the Company with the forms prescribed by the Internal Revenue Service of
the United States certifying such Lender’s exemption from United States
withholding taxes with respect to all payments to be made to such Lender
hereunder and under the Notes. Unless the Company has received forms or other
documents satisfactory to it indicating that payments hereunder or under any
Note are not subject to United States withholding tax or are subject to such tax
at a rate reduced by an applicable tax treaty, the Company may withhold taxes
from such payments at the applicable statutory rate in the case of payments to
or for any Lender organized under the laws of a jurisdiction outside the United
States. Notwithstanding any provision in this Section 5.05 to the contrary, in
the event the Company withholds such taxes from payments made by the Company,
the Company shall not be required to increase the amount of such payment to such
Lender or the Swingline Lender in order to compensate such Lender or the
Swingline Lender for the amount withheld.
SECTION
5.06. Replacement
of Lenders. So long
as no Event of Default has occurred and is continuing, the Company, upon three
Business Days’ notice, may require that any Lender (a “Replaced Lender”)
transfer all of its right, title and interest under this Agreement (except for
its right, title and interest with respect to Letters of Credit for which it has
acted as Issuing Bank) and such Replaced Lender’s Notes, if any, to any bank or
other financial institution (which may be an existing Lender) (a “Proposed
Lender”) identified by the Company so long as (i) if the Proposed Lender is not
an existing Lender, such Proposed Lender is satisfactory to the Administrative
Agent in its reasonable determination, (ii) (y) such Proposed Lender agrees to
assume all of the obligations of such Replaced Lender hereunder (except with
respect to Letters of Credit for which it has acted as Issuing Bank), and to
purchase all of such Replaced Lender’s Loans and LC Exposure hereunder for
consideration equal to the aggregate outstanding principal amount of such
Replaced Lender’s Loans and the amount of such LC Exposure, together with
interest thereon to the date of such purchase, and arrangements satisfactory to
such Replaced Lender in its reasonable determination are made for payment to
such Replaced Lender of all other amounts payable hereunder to such Replaced
Lender on or prior to the date of such transfer (including any fees accrued
hereunder and any amounts that would be payable under Section 5.04 hereof as if
all of such Replaced Lender’s Loans were being prepaid in full on such date), or
(z) other arrangements satisfactory to the Replaced Lender, the Proposed Lender
and the Company are made and (iii) as a result of such replacement the Proposed
Lender’s Commitment is not greater than 20% of the aggregate amount of the
Commitments. Subject to the provisions of Section 11.06(b) hereof, such Proposed
Lender shall be a “Lender” for all purposes hereunder. Without prejudice to the
survival of any other agreement of the Company hereunder, the agreements of the
Company contained in Sections 5.01 and 11.03 hereof (without duplication of any
payments made to such Replaced Lender by the Company or the Proposed Lender)
shall survive for the benefit of such Replaced Lender under this Section 5.06
with respect to the time prior to such replacement.
ARTICLE
VI
Conditions
Precedent.
SECTION
6.01. Initial
Loan. The
obligation of any Lender to make its initial Loan hereunder and of any Issuing
Bank to issue Letters of Credit hereunder is subject to the conditions precedent
that the Administrative Agent shall have received the following documents (with
sufficient copies for each Lender), each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to each Lender) in form
and substance (which conditions may be satisfied on the date of the execution
and delivery of this Agreement):
(a) Corporate
Documents.
Certified copies of the charter and by-laws (or equivalent documents) of the
Company, a long-form certificate of good standing for the Company from the
office of the Secretary of State of the State of Delaware and certified copies
of all corporate authority for the Company (including, without limitation, board
of director resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery and performance
of this Agreement and the Notes and each other document to be delivered by the
Company from time to time in connection herewith and the Loans hereunder (and
the Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from the Company to the
contrary).
(b) Opinion
of Counsel to the Company. An
opinion of Cahill Gordon & Reindel LLP, counsel to the Company,
substantially in the form of Exhibit A hereto (and the Company hereby instructs
such counsel to deliver such opinion to the Lenders and the Administrative
Agent).
(c) Other
Documents. Such
other documents as the Administrative Agent or any Lender or Cravath, Swaine
& Moore LLP, special counsel to JPMCB, may reasonably request.
(d) Payment
of Fees. Receipt
by each of the Lenders of each of the fees which they are entitled to be paid on
the Closing Date or prior to the initial extension of credit hereunder pursuant
to the terms hereof or of any other agreement between the Company and the
Lenders.
(e) Termination
of Existing Credit Agreements.
Evidence acceptable to the Administrative Agent that all amounts outstanding
pursuant to the Existing Credit Agreements have been repaid in full and that the
commitments of the lenders thereunder have been terminated.
SECTION
6.02. Initial
and Subsequent Loans. The
obligation of any Lender or the Swingline Lender to make any Loan (including any
Competitive Bid Loan and such Lender’s initial Syndicated Loan and any Swingline
Loan) to the Company upon the occasion of each borrowing hereunder, and of the
Issuing Bank to issue, amend, renew or extend any Letters of Credit, is subject
to the further conditions precedent that, both immediately prior to the making
of such Loan or the issuance, amendment, renewal, or extension of such Letter of
Credit, as the case may be, and in either event also after giving effect thereto
and to the intended use thereof:
(a) subject
to the right of the Company to Continue Loans during the occurrence and
continuation of an Event of Default as provided in Section 2.10(c) hereof, no
Event of Default (and, if such borrowing or issuance, amendment, renewal or
extension of a Letter of Credit will increase the outstanding aggregate
principal amount of the Loans of any Lender hereunder or the LC Exposure, as the
case may be, no Default) shall have occurred and be continuing; and
(b) the
representations and warranties made by the Company in Article 7 hereof (other
than Section 7.05 and 7.07 hereof) shall be true and complete on and as of the
date of the making of such Loan, or the date of issuance, amendment, renewal or
extension of such Letters of Credit, as applicable, with the same force and
effect as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such
specific date).
Each
notice of borrowing or request for issuance, amendment, renewal or extension of
a Letter of Credit by the Company hereunder shall constitute a certification by
the Company to the effect set forth in the preceding sentence (both as of the
date of such notice and as of the date of such borrowing, issuance, amendment,
renewal or extension of a Letter of Credit, as the case may be).
ARTICLE
VII
Representations
and Warranties.
The Company represents and
warrants to the Administrative Agent, the Swingline Lender and the Lenders
that:
SECTION
7.01. Organization,
Corporate Powers. (a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; (b) the Company (i) has the corporate
power and authority to own its Property and to carry on its business as now
conducted and (ii) is qualified to do business in every jurisdiction where such
qualification is necessary in view of the properties owned or business
transacted by it; and (c) the Company has the corporate power to execute,
deliver and perform this Agreement, to borrow hereunder, to execute and deliver
the Notes and to perform all of its obligations hereunder with respect to
Letters of Credit.
SECTION
7.02. Authorization. The
execution, delivery and performance of this Agreement, the borrowings hereunder,
the execution and delivery of the Notes and the performance by the Company of
each of its obligations hereunder with respect to Letters of Credit issued by an
Issuing Bank, (a) have been duly authorized by all requisite corporate action on
the part of the Company and (b) will not (i) violate (A) any provision of law
applicable to the Company, the certificate of incorporation or by-laws of the
Company, (B) any applicable order of any court or other agency of government or
(C) any indenture, any agreement for borrowed money, any bond, note or other
similar instrument or any other material agreement to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective Properties is bound, (ii) be in conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement, bond, note, instrument or
other material agreement or (iii) result in the creation or imposition of any
Lien upon any Property of the Company.
SECTION
7.03. Governmental
Approval. No
action, consent or approval of, or registration or filing with, or any other
action by any governmental agency, bureau, commission or court is required in
connection with the execution, delivery and performance by the Company of this
Agreement, the borrowings hereunder, the execution and delivery of the Notes,
and the performance by the Company of each of its obligations hereunder with
respect to Letters of Credit issued by an Issuing Bank.
SECTION
7.04. Financial
Statements. The
Company has heretofore furnished to each Lender (i) its audited consolidated
financial statements as at December 31, 2003 and for the twelve month period
then ended and (ii) its unaudited consolidated financial statements as of
September 30, 2004 and for the fiscal quarter and portion of the fiscal year
then ended. Such financial statements were prepared in accordance with GAAP
(subject, in the case of such unaudited financial statements, to the absence of
footnotes and to normal year-end audit adjustments) and present fairly the
consolidated financial condition and results of operations of the Company and
its Subsidiaries as of the date and for the period indicated, and such balance
sheet as of September 30, 2004 shows all known direct liabilities and all known
contingent liabilities of a material nature of the Company and its
Subsidiaries.
SECTION
7.05. No
Material Adverse Change. There
has been no material adverse change in the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole since December 31, 2003.
SECTION
7.06. Title
to Properties. All
material assets of the Company and its Subsidiaries are free and clear of Liens,
except such as are permitted by Section 8.07 hereof.
SECTION
7.07. Litigation. There
are no lawsuits in any court or other proceedings before any arbitrator or by or
before any governmental commission, board, bureau or other administrative
agency, pending, or, to the knowledge of the Company, threatened, the ultimate
disposition of which should have a material adverse effect on the consolidated
financial condition or business of the Company and its Subsidiaries taken as a
whole; and neither the Company nor any of its Subsidiaries is in default with
respect to any judgment, writ, injunction, decree, rule or regulation of any
court or Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which default
would have a material adverse effect on the Company and its Subsidiaries taken
as a whole.
SECTION
7.08. Tax
Returns. All
material assessed deficiencies resulting from examinations of the Federal income
tax returns of the Company and its Subsidiaries by the Internal Revenue Service
have been discharged or reserved against in full. The Company and each of its
Subsidiaries have filed or caused to be filed all Federal, state and local tax
returns which, to the knowledge of the Company, are required to be filed and
have paid or caused to be paid all taxes as shown on such returns or on any
assessment received by it or by any of them to the extent that such taxes have
become due, except taxes the validity of which is being contested in good faith
by appropriate proceedings or the nonpayment of which would not have a material
adverse effect on the financial condition of the Company and its Subsidiaries
taken as a whole.
SECTION
7.09. Agreements. Neither
the Company nor any of its Significant Subsidiaries is in material default in
the performance, observance or fulfillment of any obligation, covenant or
condition contained in any material agreement or instrument to which it is a
party.
SECTION
7.10. Employee
Benefit Plans. Each of
the Company and its Subsidiaries is in compliance in all material respects with
the applicable provisions of ERISA and the regulations and published
interpretations thereunder. No Reportable Event has occurred with respect to any
Plan administered by the Company or any of its Subsidiaries or any administrator
designated by the Company or any of its Subsidiaries. As of the date of the most
recent actuarial valuation of each Plan administered by the Company, its
Domestic Subsidiaries and administrators designated by the Company or any of its
Subsidiaries, the aggregate present value of all vested accrued benefits under
all such Plans (determined in accordance with the assumptions specified in such
actuarial valuations) did not exceed the fair market value of the aggregate
assets of such Plans by an amount that could reasonably be expected to result in
a material adverse change in the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION
7.11. Federal
Reserve Regulations. Neither
the Company nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purposes of
purchasing or carrying any margin stock (within the meaning of Regulation U).
Following application of the proceeds of each Loan, not more than 25 percent (or
such greater or lesser percentage as provided in Regulation U in effect at the
time of the making of such Loan) of the value of the Property (either of the
Company only or of the Company and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 8.07 or 8.08 hereof will be margin stock
(within the meaning of Regulation U).
SECTION
7.12. Investment
Company Act. Neither
the Company nor any of its Subsidiaries is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.
SECTION
7.13. Public
Utility Holding Company Act. Neither
the Company nor any of its Subsidiaries is a “holding company”, or an
“affiliate” of 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.
ARTICLE
VIII
Covenants
of the Company.
The Company covenants and agrees with the Administrative Agent, the Swingline
Lender and the Lenders that, so long as (a) any Commitment or Loan is
outstanding, (b) any Letters of Credit shall not have expired or been
terminated, (c) any LC Disbursements shall have not been reimbursed in full, or
(d) any amounts payable by the Company hereunder have not yet been paid in
full:
SECTION
8.01. Corporate
Existence. The
Company shall do, and shall cause each of its Significant Subsidiaries to do,
all things necessary to preserve, renew and keep in full force and effect its
corporate existence, material rights, licenses, permits and franchises and
comply with all laws and regulations applicable to it; at all times maintain and
preserve all Property used or useful in the conduct of its business and keep the
same in good repair, working order and conditions, and from time to time make,
or cause to be made, all needful and proper repairs, renewals and replacements
thereto, so that the business carried on in connection therewith may be properly
conducted at all times.
SECTION
8.02. Insurance. The
Company shall, and shall cause each of its Significant Subsidiaries to, (a) keep
its insurable Properties adequately insured at all times; (b) maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses; (c) maintain in full force and effect public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by the Company or any Significant Subsidiary, as
the case may be, in such amount as the Company or such Significant Subsidiary,
as the case may be, shall reasonably deem necessary; and (d) maintain such other
insurance as may be required by law.
SECTION
8.03. Obligations
and Taxes. The
Company shall pay, and shall cause each of its Significant Subsidiaries to pay,
all its material indebtedness and obligations promptly and in accordance with
their terms and pay and discharge promptly all material taxes, assessments and
governmental charges or levies imposed
upon it
or upon its income or profits or in respect of its Property, before the same
shall become in default, as well as all material lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might become a Lien or
charge upon such properties or any part thereof; provided, however, that neither
the Company nor any of its Significant Subsidiaries shall be required to pay and
discharge or to cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and provided the Company
shall have set aside on its books reserves which the Company deems adequate with
respect thereto.
SECTION
8.04. Financial
Statements, Reports, etc. The
Company shall furnish to each Lender and the Swingline Lender:
(a) within 95
days after the end of each fiscal year of the Company (being December 31 in each
calendar year), an audited consolidated balance sheet of the Company and its
Subsidiaries and the related audited consolidated statement of earnings showing
the financial condition of the Company and its Subsidiaries as of the close of
such fiscal year and the results of their operations during such year, and a
consolidated statement of stockholders’ equity and a consolidated statement of
cash flows, as of the close of such fiscal year, all the foregoing consolidated
financial statements to be reported on by, and to carry the report acceptable to
the Required Lenders of, the Company’s independent public accountants (which
shall be Ernst & Young LLP or another independent firm of nationally
recognized certified public accountants), such financial statements to be in
form acceptable to the Required Lenders in their reasonable
determination;
(b) within 50
days after the end of each of the first three fiscal quarters of each fiscal
year, an unaudited consolidated balance sheet and unaudited consolidated
statements of earnings and of cash flows showing the financial condition of the
Company and its Subsidiaries as of the end of each such quarter and the results
of operations for the then-elapsed portion of the fiscal year, certified by a
Financial Officer of the Company as being correct and complete and as presenting
fairly the financial position and results of operations of the Company and its
Subsidiaries and as having been prepared in accordance with GAAP consistently
applied, in each case subject to normal year-end audit adjustments;
(c) concurrently
with (a) above, a certificate of the firm referred to therein (which certificate
may be limited to accounting matters and disclaim responsibility for legal
interpretations) certifying that to the best of its knowledge no Default has
occurred and is continuing or, if such a Default has occurred and is continuing,
specifying the nature and extent thereof;
(d) concurrently
with (a) and (b) above, a certificate of the Company setting forth in reasonable
detail the computations necessary to determine whether the Company is in
compliance with Section 8.09 hereof as of the end of the respective quarterly
fiscal period or fiscal year; and
(e) promptly,
from time to time, such other information regarding the financial condition of
the Company and its Subsidiaries (and the identities, net income and assets of
Significant Subsidiaries) as the Administrative Agent or any Lender may
reasonably request.
Information
required to be delivered pursuant to the clauses above shall be deemed to have
been delivered if such information, or one or more annual or quarterly reports
containing such information, shall have been posted on the Company’s website on
the Internet at www.engelhard.com (or such other address as the Company shall
provide to the Lenders) or by the Administrative Agent on an IntraLinks or
similar site to which the Lenders have been granted access or shall be available
on the website of the Securities and Exchange Commission at http://www.sec.gov
(and a confirming electronic correspondence shall have been delivered or caused
to be delivered to the Administrative Agent and each Lender providing notice of
such posting or availability); provided that the
Borrower shall deliver paper copies of such information to the Administrative
Agent for any Lender that requests such delivery through the Administrative
Agent. Information required to be delivered pursuant to this Section 8.04 may
also be delivered by electronic communications pursuant to procedures approved
by the Administrative Agent.
SECTION
8.05. Notices
and Delivery of Certain Documents. The
Company shall give the Administrative Agent and each Lender prompt notice of any
Default and furnish each Lender with copies of all press releases issued by the
Company, all filings made by the Company with the Securities and Exchange
Commission under the Securities Exchange Act of 1934 and all written
communications from the Company to its shareholders generally.
SECTION
8.06. ERISA. The
Company shall, and shall cause each of its Subsidiaries to, (a) comply in all
material respects with the applicable provisions of ERISA and (b) furnish to
each Lender, (i) as soon as possible, and in any event within 30 days after any
officer of the Company knows that any Reportable Event with respect to any Plan
with vested unfunded liabilities in excess of $5,000,000 has occurred, a
statement of a Financial Officer setting forth details as to such Reportable
Event and the action, if any, that the Company proposes to take with respect
thereto, together with a copy of the notice of such Reportable Event given to
the PBGC, (ii) at the request of any Lender, promptly after the filing thereof
with the United States Secretary of Labor or the PBGC, copies of each annual or
other report, if any, with respect to any Plan, and (iii) promptly after receipt
thereof, a copy of any notice the Company or any of its Subsidiaries may receive
from the PBGC relating to the intention of the PBGC to terminate any Plan with
vested unfunded liabilities in excess of $5,000,000 or to appoint a trustee to
administer any such Plan.
SECTION
8.07. Liens. The
Company shall not, and shall not permit any of its Subsidiaries to, incur,
create or permit to exist any Lien on any of its Property now owned or hereafter
acquired by the Company or any of its Subsidiaries, other than:
(a) Liens for
taxes or assessments and similar charges either (i) not delinquent or (ii) being
contested in good faith by appropriate proceedings and as to which the Company
or such Subsidiary, as the case may be, shall have set aside on its books
adequate reserves;
(b) Liens
incurred or pledges and deposits made in connection with worker’s compensation,
unemployment insurance, old-age pensions and social security benefits or
securing the performance of bids, tenders, leases, Contracts, and statutory
obligations of like nature, incurred as an incident to and in the ordinary
course of business;
(c) materialmen’s,
mechanics’, repairmen’s, employees’, operators’ or other similar Liens or
charges arising in the ordinary course of business incidental to construction,
maintenance or operation of any Property of the Company or any of its
Subsidiaries which have not at the time been filed pursuant to law and any such
Liens and charges incidental to construction, maintenance or operation of any
Property of the Company or any of its Subsidiaries, which, although filed,
relate to obligations not yet due or the payment of which is being withheld as
provided by law, or to obligations the validity of which is being contested in
good faith by appropriate proceedings;
(d) zoning
restrictions, easements, licenses, reservations, provisions, covenants,
conditions, waivers, restrictions on the use of property or minor irregularities
of title (and with respect to leasehold interests, mortgages, obligations, Liens
and other encumbrances incurred, created, assumed or permitted to exist and
arising by, through or under or asserted by a landlord or owner of the leased
property, with or without consent of the lessee), which will not individually or
in the aggregate interfere materially with the use or operation by the Company
or any of its Subsidiaries of the Property affected thereby for the purposes for
which such Property was acquired or is held by the Company or any of its
Subsidiaries;
(e) Liens
created by or resulting from any litigation or proceeding which is currently
being contested in good faith by appropriate proceedings and as to which levy
and execution have been stayed and continue to be stayed;
(f) Liens
consisting of, or arising in connection with, repurchase agreements, swaps or
other obligations entered into in the ordinary course of business and not for
the purpose of speculation relating to precious metals purchased, borrowed or
otherwise held by the Company or any of its Subsidiaries;
(g) Liens
incidental to the conduct of its business or the ownership of its Property which
were not incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not in the aggregate materially detract from the
value of the Property subject thereto or materially impair the use thereof in
the operation of its business;
(h) Liens on
Property of a Subsidiary of the Company to secure obligations of such Subsidiary
to the Company or another Subsidiary of the Company;
(i) Liens
arising in connection with letter of credit trade transactions, provided that
the Company or any of its Subsidiaries, as the case may be, discharges within 30
days its obligation to pay the indebtedness to banks arising from payments made
by such banks under such letters of credit; and
(j) other
Liens, provided that the aggregate of all Properties and assets of the Company
and its Subsidiaries which are subject to or affected by such Liens and which
would properly be classified as assets on a consolidated balance sheet prepared
in accordance with GAAP (including all leases (other than leases of office space
and research and development facilities, if any) that would be required to be
reflected as capital leases pursuant to such principles) does not at any time
have a value on the books of the Company and its Subsidiaries in excess of 25%
of the Consolidated Tangible Net Worth calculated for the quarter most recently
ended.
SECTION
8.08. Consolidations,
Mergers and Sales of Assets. The
Company shall not, and the Company shall not permit any of its Significant
Subsidiaries to, merge or consolidate with or into any other Person or sell,
lease, transfer or assign to any Person or otherwise dispose of (whether in one
transaction or a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired), except that so long as immediately
thereafter and after giving effect thereto no Default has occurred and is
continuing, (a) the Company or a Significant Subsidiary may merge or
consolidate with another corporation in a transaction in which the Company is
the surviving entity or such Significant Subsidiary is the surviving entity and
continues to be a Subsidiary of the Company, (b) the Company may merge or
consolidate with another corporation in a transaction in which such other
corporation is the surviving entity if such other corporation is acceptable to
the Required Lenders in their reasonable determination and such other
corporation effectively assumes and agrees to perform and discharge all the
obligations of the Company under this Agreement under the Notes and with respect
to the Letters of Credit pursuant to a written instrument or instruments
satisfactory to the Lenders and counsel for the Lenders in their reasonable
determination, and (c) any Significant Subsidiary may (i) merge or
consolidate with the Company or into another Subsidiary of the Company which
continues to be a Subsidiary after such transaction or (ii) sell, lease,
transfer, assign or otherwise dispose of (whether in one transaction or series
of transactions) all or substantially all of its Property (whether now owned or
hereafter acquired) to the Company or to another Subsidiary of the Company which
continues to be a Subsidiary after such transaction or transactions. For the
purpose of this Section 8.08 only, “Significant Subsidiary” shall mean any
Subsidiary of the Company having total assets as of the end of the most recent
fiscal year equal to or greater than 25% of the consolidated total assets of the
Company and its Subsidiaries as of the end of such fiscal year of the
Company.
SECTION
8.09. Debt
to EBITDA. The
Company shall not permit, as of the last day of each fiscal quarter of the
Company, the ratio of Debt of the Company and its Consolidated Subsidiaries at
such date to EBITDA for the preceding four fiscal quarters immediately preceding
such date (each of the four preceding fiscal quarters a “Test
Quarter” and
such four fiscal quarter period the “Test
Period”),
including the fiscal quarter most recently ended in such Test Period, to be
greater than 3.0 to 1.0. For
purposes of determining compliance with this Section 8.09, if any acquisition or
asset sale not in the ordinary course of business that is required to be
reported by the Company on SEC Form 8-K occurs or has occurred during any Test
Quarter (each, a “Subject
Transaction”),
EBITDA shall be calculated for the relevant Test Period on a pro forma basis
(including pro forma adjustments arising out of events which are attributable to
a Subject Transaction determined on a basis consistent with Article 11 of
Regulation S-X promulgated under the Securities Act of 1933, which would include
cost savings resulting from head count reduction, closure of facilities and
similar restructuring charges), using the historical financial statements of any
business so acquired or sold and the consolidated financial statements of the
Company and its consolidated Subsidiaries which shall be adjusted as if such
Subject Transaction had been consummated on the first day of the relevant Test
Period.
SECTION
8.10. Use of
Proceeds. The
Company shall use the proceeds of the Loans for general corporate purposes,
including, without limitation, to provide liquidity support for the issuance of
commercial paper and acquisition financing; provided, however, (a) that the
proceeds of any Swingline Loan may not be used to repay or prepay any other
Swingline Loan and (b) that no Loan shall be available if the Required
Lenders, in their sole discretion and upon notice to the Company explaining the
basis, refuse to make any Loan the proceeds of which will be used by the Company
in an acquisition which the Required Lenders have reasonable cause to believe is
opposed by the acquired Person’s board of directors or other governing body or
is likely to be hostile or unfriendly; provided, further, that no Lender may
refuse to make any Loan pursuant to this Section 8.10 if the Company presents a
certified resolution of the board of directors or other governing body of the
acquired entity approving, supporting or otherwise evidencing agreement with the
proposed acquisition. None of the Administrative Agent, the Swingline Lender or
any Lender shall have any responsibility as to the use of any of such
proceeds.
ARTICLE
IX
Events
of Default.
If one or more of the
following events (herein called “Events of Default”) shall occur and be
continuing:
(a) any
representation or warranty made in connection with this Agreement or with the
execution and delivery of the Notes, the borrowings hereunder or in connection
with the issuance of, or performance by any Lender (including without limitation
any Issuing Bank) with respect to, Letters of Credit, or any statement or
representation made in any report, certificate, financial statement or other
instrument furnished by the Company to the Administrative Agent, the Swingline
Lender or the Lenders pursuant to this Agreement shall prove to have been false
or misleading in any material respect when made or delivered;
(b) default
shall be made in the payment of any principal or interest hereunder or under any
Note, any reimbursement obligation in respect of any LC Disbursement, or of any
fees or other amounts payable by the Company hereunder, when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise, and, in the case
of payments other than of any principal amounts or reimbursement obligations in
respect of LC Disbursements hereunder, such default shall continue unremedied
for three (3) Business Days;
(c) default
shall be made with respect to any agreement or other evidence of indebtedness or
liability for borrowed money in excess of $50,000,000 (other than hereunder) of
the Company or any Significant Subsidiary if the effect of such default is to
accelerate the maturity of such indebtedness or liability or to require the
prepayment thereof or to permit the holder or holders thereof (or a trustee on
behalf of the holder or holders thereof) to cause such indebtedness to become
due prior to the stated maturity thereof, or any such indebtedness or liability
shall become due and shall not be paid prior to the expiration of any period of
grace;
(d) default
shall be made in the due observance or performance of Section 8.09
hereof;
(e) default
shall be made in the due observance or performance of any other covenant,
condition or agreement to be observed or performed by the Company pursuant to
the terms hereof and such default shall continue unremedied for 10 days after
written notice thereof to the Company by any Lender;
(f) the
Company or any Significant Subsidiary shall file one or more petitions or
answers or consents seeking relief under Title 11 of the United States Code, as
now or hereafter constituted, or any other applicable foreign, Federal or state
bankruptcy, insolvency or similar law or laws, or shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment of or taking of possession of the Company or any Significant
Subsidiary, as the case may be, or any Property of any of the same, by, one or
more receivers, liquidators, assignees, trustees, custodians, sequestrator or
other similar officials or the Company or any Significant Subsidiary shall make
one or more assignments for the benefit of creditors, or shall become unable
generally to pay its debts as they become due, or the Company or any Significant
Subsidiary shall take action in furtherance of any such action;
(g) one or
more decrees or orders shall be entered by one or more courts having
jurisdiction in the premises for relief in respect of the Company or any
Significant Subsidiary under Title 11 of the United States Code, as now or
hereafter constituted, or any other applicable foreign, Federal or state
bankruptcy, insolvency or similar law or laws, or appointing one or more
receivers, liquidators, assignees, trustees, sequestrator or similar officials
of the Company or any Significant Subsidiary, as the case may be, or of any
Property of any of the same, or ordering the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary, and any one or more such
decrees or orders shall continue unstayed and in effect for a period of 60
days;
(h) final
judgment for the payment of money in excess of an aggregate of $50,000,000 and
not fully covered by insurance shall be rendered against the Company or any
Significant Subsidiary and the same shall remain undischarged for a period of 60
consecutive days during which execution shall not be effectively
stayed;
(i) A
Reportable Event shall have occurred with respect to any Plan with vested
unfunded liabilities in excess of $5,000,000 which the Required Lenders
determine constitutes reasonable grounds for the termination of such Plan by the
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Plan or a trustee shall be appointed by a United
States District Court to administer any Plan with vested unfunded liabilities in
excess of $5,000,000; or the PBGC shall institute proceedings to terminate any
Plan with vested unfunded liabilities in excess of $5,000,000; or the withdrawal
by the Company or any Subsidiary from a Multiemployer Plan giving rise to
Withdrawal Liability in excess of $5,000,000; or
(j) a Change
in Control of the Company shall have occurred; for purposes of this paragraph
(j), a “Change in Control” shall mean the acquisition by any Person (other than
the Company) or group (as defined in the Securities Exchange Act of 1934) of
twenty-five percent (25%) or more of the voting power of the Company entitled to
vote in the election of directors;
THEREUPON:
(1) in the case of an Event of Default other than one referred to in clause
(f) or (g) of this Article 9 with respect to the Company, (A) the
Administrative Agent, with the approval of the Required Lenders, may and, upon
request of the Required Lenders (or with respect to Swingline Loans, upon the
request of the Swingline Lender), will, by notice to the Company, terminate the
Commitments (and/or the Swingline Commitment) and they shall thereupon
terminate, and (B) the Administrative Agent, with the approval of the
Required Lenders, may and, upon request of the Required Lenders shall, by notice
to the Company declare the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Company hereunder
and under the Notes (including, without limitation, any amounts payable under
Section 5.04 hereof) to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Company; and (2) in the case of the occurrence of an Event of Default
referred to in clause (f) or (g) of this Article 9 with respect to the Company,
the Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans and all other amounts
payable by the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.04 hereof) shall automatically
become immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company.
ARTICLE
X
The
Administrative Agent.
SECTION
10.01. Appointment,
Powers and Immunities. Each
Lender and the Swingline Lender hereby appoints and authorizes the
Administrative Agent to act as its agent hereunder with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
10.05 and the first sentence of Section 10.06 hereof shall include reference to
its Related Parties):
(a) shall
have no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee for any Lender
or the Swingline Lender;
(b) shall not
be responsible to the Lenders or the Swingline Lender for any recitals,
statements, representations or warranties contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or any
other document referred to or provided for herein or for any failure by the
Company to perform any of its obligations hereunder or thereunder;
(c) shall not
be required to initiate or conduct any litigation or collection proceedings
hereunder; and
(d) shall not
be responsible for any action taken or omitted to be taken by it hereunder or
under any other document or instrument referred to or provided for herein or in
connection herewith, except for its own gross negligence or willful
misconduct.
The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Company to
such assignment or transfer (to the extent required by Section 11.06(b)
hereof).
SECTION
10.02. Reliance
by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Administrative Agent. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in accordance
with instructions given by the Required Lenders (or, if so provided in Section
11.04 hereof, all of the Lenders), and such instructions of the Required Lenders
(or all of the Lenders, as the case may be) and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders.
SECTION
10.03. Defaults. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default unless the Administrative Agent has received notice from
a Lender, the Swingline Lender or the Company specifying such Default and
stating that such notice is a “Notice of Default”. In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders and the
Swingline Lender. The Administrative Agent shall (subject to Section 10.07
hereof) take such action with respect to such Default as shall be directed by
the Required Lenders or in the case of Swingline Loans, the Swingline Lender
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Required
Lenders or all of the Lenders.
SECTION
10.04. Rights
as a Lender. With
respect to its Commitment, Swingline Commitment and the Loans made by it, JPMCB
(and any successor acting as Administrative Agent) in its capacity as a Lender
or the Swingline Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term “Lender” or “Lenders” or
“Swingline Lender” shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. JPMCB (and any successor acting
as Administrative Agent) and its Affiliates may (without having to account
therefor to any Lender) accept deposits from, lend money to, make investments in
and generally engage in any kind of banking, trust or other business with the
Company (and any of its Subsidiaries or Affiliates) as if it were not acting as
the Administrative Agent, and JPMCB (and any such successor) and its Affiliates
may accept fees and other consideration from the Company for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders or the Swingline Lender.
SECTION
10.05. Indemnification. The
Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed under Section 11.03 hereof, but without limiting the obligations of
the Company under said Section 11.03) ratably in accordance with their
respective commitments (and, after the Commitments have been terminated, ratably
in accordance with the aggregate principal amount of the Loans held by the
Lenders), for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) arising out of or by reason of
any investigation in or in any way relating to or arising out of this Agreement
or any other documents contemplated by or referred to herein or the transactions
contemplated hereby (including, without limitation, the costs and expenses that
the Company is obligated to pay under Section 11.03 hereof but excluding unless
a Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be
indemnified.
SECTION
10.06. Non-Reliance
on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Company and its Subsidiaries and decision to enter into this
Agreement and that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or any other document
referred to or provided for herein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, operations, business,
Properties, liabilities or prospects of the Company or any of its Subsidiaries
(or any of their Affiliates) that may come into the possession of the
Administrative Agent or any of its Affiliates.
SECTION
10.07. Failure
to Act. Except
for action expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under Section
10.05 hereof against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action.
SECTION
10.08. Resignation
or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent’s giving of
notice of resignation or the Required Lenders’ removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent’s resignation or
removal hereunder as Administrative Agent, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative
Agent.
ARTICLE
XI
Miscellaneous.
SECTION
11.01. Waiver. No
failure on the part of the Administrative Agent, the Swingline Lender, or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
future exercise thereof or the exercise of any right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
SECTION
11.02. Notices. All
notices, requests and other communications provided for herein (including,
without limitation, any modifications of, or waivers, requests or consents
under, this Agreement) shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, or with respect to notices given pursuant to Section 2.03 hereof, by
telephone, confirmed in writing by telecopier by the close of business on the
day such notice is given, as follows:
(a) if to the
Company, to it at Engelhard Corporation, 101 Wood Avenue, Iselin, New Jersey
08830, Attention of (Telecopy No. ( ) - ) with a copy to the General Counsel
(Telecopy No. ( ) - );
(b) if to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 1111 Fannin Street, 10th floor, Houston, Texas 77054, Attention: Ms.
Kelly Collins (Telecopy No. (713)427-6307) , with a copy to JPMorgan Chase Bank,
N.A., 270 Park Avenue, New York, New York 10017, Attention: Mr. James Ramage
(Telecopy No. (212)270-5100);
(c) if to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. Except as
otherwise provided in this Agreement, all notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION
11.03. Indemnification,
Expenses, Etc. (a) The
Company will indemnify each Lender, the Administrative Agent, the Arranger, the
Issuing Banks and the Swingline Lender and each Related Party (collectively, the
“Indemnified Persons”) and hold such Indemnified Persons harmless against any
losses and related reasonable out-of-pocket expenses incurred by each such
Indemnified Person (i) in the enforcement or protection of its rights in
connection with this Agreement, with the Loans made or the Notes or Letters of
Credit issued hereunder, (ii) as a result of any transaction, action or
failure to act arising from the foregoing, including, but not limited to, the
reasonable fees and disbursements of counsel to such Indemnified Persons, and
(iii) with respect to any action which may be instituted by any Person
against such Indemnified Persons, (x) as a direct result of the execution
and delivery of this Agreement or, (y) with respect to the Loans made or
Letters of Credit issued hereunder, provided that with respect to each of the
indemnities provided for in this subsection (a), such indemnities shall not, as
to any Indemnified Person, be available to the extent that such losses or
related expenses are determined by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnified
Person.
(b) The
Company agrees that it shall indemnify each Indemnified Person from and hold
each of them harmless against any documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of this
Agreement or the Notes or the issuance of, or performance of any Lender’s
(including, without limitation, any Issuing Bank’s) obligations with respect to,
any Letter of Credit. The obligations of the Company under this Section shall
survive the termination of this Agreement, the payment of the Notes and the
expiration or termination of all Letters of Credit.
(c) The
Company shall indemnify each Indemnified Person, and hold each Indemnified
Person harmless from, any and all losses, damages, liabilities and reasonable
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnified Person, incurred by any Indemnified Person arising out of or
as a result of any claims pursuant to any Environmental Laws regarding (a) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Company or any of its Subsidiaries, or (b) any
Environmental Liability, except to the extent attributable to actions of any
Indemnified Person.
(d) (i) If after
any Indemnified Person(s) shall have made a claim for indemnification hereunder
and the Company shall have failed to agree to defend or settle the claim to
which such claim for indemnification relates (a “Third-Party Claim”) within
fifteen (15) Business Days (the “Notice Period”), such Indemnified Person(s) may
defend or settle the Third-Party Claim as it or they deem appropriate without
prejudice to any of their above rights to indemnity from the Company, and with
no further obligation to inform the Company of the status of the Third-Party
Claim and no right of the Company to approve or disapprove any actions taken in
connection therewith by the Indemnified Person(s). Notwithstanding the
foregoing, in the event that the Company fails to agree to defend or settle a
Third-Party Claim on behalf of the Indemnified Person(s) within the Notice
Period, the amount of any indemnity due hereunder shall bear interest calculated
at the Base Rate, from the date upon which the Indemnified Person(s) are
required to make any payment(s) with respect to the Third-Party Claim and any
related costs and expenses as provided herein, to the date of the Company’s
payment to the Indemnified Person(s) as required hereby, calculated upon the
actual number of days elapsed over a 365-day year.
(ii) If the
Company agrees to defend or settle a Third-Party Claim on behalf of any
Indemnified Person(s) hereunder, it shall so notify the Indemnified Person(s)
within the Notice Period and elect either (a) to undertake the defense or
settle such Third-Party Claim with counsel selected by the Company and approved
by the Indemnified Person(s), which approval shall not be unreasonably withheld,
and the provisions of subclause (iii) of this Section 11.03(d) shall be
applicable thereto, or (b) to instruct the Indemnified Person(s) to defend
or settle such Third-Party Claim, in which event the Indemnified Person(s) may
defend or settle the Third-Party Claim as it or they deem appropriate without
prejudice to any of their above rights to indemnity from the Company, provided
that, the Company shall not be liable under this Section 11.03(d)(ii) to
indemnify any Named Party in respect of any settlement effected without its
consent, such consent not to be unreasonably withheld.
(iii) If the
Company undertakes the defense or settlement of such Third-Party Claim, the
Indemnified Person(s) shall be entitled, at their own expense, to participate in
such defense or settlement negotiation. If the Company undertakes such defense
or settlement of a Third-Party Claim on behalf of the Indemnified Person(s), no
compromise or settlement of such Third-Party Claim shall be made by any
Indemnified Person without the prior written consent of the Company. In
addition, no compromise or settlement of any Third-Party Claim shall be made by
the Company without the prior written consent of the Indemnified Person(s), such
consent not to be unreasonably withheld, provided, that in the event that a
Indemnified Person shall not consent to such compromise or settlement (in
connection with which the Company shall have agreed to indemnify such
Indemnified Person in full in respect of such compromise or settlement pursuant
to the terms of this Section 11.03), the amount of indemnification to which such
Indemnified Person(s) is entitled pursuant to this Section 11.03(d)(iii) shall
be limited to the amount of such proposed settlement, plus all applicable
out-of-pocket costs and expenses up to the date of the proposal of such
settlement.
(iv) Notwithstanding
the foregoing provisions of this subsection (d), in the event that the Company
agrees to undertake the defense of or settlement of any Third-Party Claim, the
Company agrees that its indemnity obligations hereunder shall include the
payment of the reasonable fees and disbursements of separate counsel to the
Indemnified Person(s) if (x) in such Indemnified Person(s)’s reasonable judgment
and in the good faith judgment of its separate legal counsel, the use of counsel
chosen by the Company would present such counsel with a conflict of interest; or
(y) the Company shall authorize such Indemnified Person(s) to employ separate
counsel at the Company’s expense, (it being agreed that the Company shall not,
under any of the circumstances described in clauses (x) or (y) above, have the
right to direct the defense of such action or proceeding on behalf of the
Indemnified Person(s)).
(v) Notwithstanding
any other provision of this subsection (d) (but without affecting the limitation
of the Company’s liability set forth in subsection (iii) of this Section
11.03(d)), (x) the Company shall not, without the prior written consent of the
relevant Indemnified Person(s) agree to any settlement of any claim, litigation
or proceeding in respect of which indemnity shall be sought hereunder if such
settlement contains an admission of wrongdoing by such Indemnified Person or if
all claimants shall not have executed a full release in favor of such
Indemnified Person, and (y) each Indemnified Person shall, subject to its
reasonable business needs, use reasonable efforts to minimize the
indemnification sought from the Company under this Section 11.03.
SECTION
11.04. Amendments,
Etc. Except
as otherwise expressly provided in this Agreement, any provision of this
Agreement may be modified or supplemented only by an instrument in writing
signed by the Company and the Required Lenders, or by the Company and the
Administrative Agent acting with the consent of the Required Lenders, and, if
the rights or obligations hereunder of the Swingline Lender are affected
thereby, the Swingline Lender, and any provision of this Agreement may be waived
by the Required Lenders or by the Administrative Agent acting with the consent
of the Required Lenders and, if the rights or obligations hereunder of the
Swingline Lender are affected thereby, the Swingline Lender; provided that (a)
no modification, supplement or waiver shall, unless by an instrument signed by
all of the Lenders affected or by the Administrative Agent acting with the
consent of all of the Lenders affected: (i) increase, or extend the term of the
Commitments, or extend the time or waive any requirement for the reduction or
termination of the Commitments, (ii) extend the date fixed for the payment of
principal of or interest on any Loan, the reimbursement of any LC Disbursement,
or the payment of any fee hereunder, (iii) reduce the amount of any such payment
of principal or reimbursement of any LC Disbursement, (iv) reduce the rate at
which interest is payable thereon or any fee is payable hereunder, (v) alter the
manner in which payments or prepayments of principal, interest, reimbursements
of any LC Disbursement or other amounts hereunder shall be applied as between
the Lenders or Types or Classes of Loans, (vi) alter the terms of Section 4.02
or 4.07(a) hereof or of this Section 11.04, (vii) modify the definition of the
term “Required Lenders” or modify in any other manner the number or percentage
of the Lenders required to make any determinations or waive any rights hereunder
or to modify any provision hereof, or (viii) waive any of the conditions
precedent set forth in Section 6.01 hereof; (b) if at the time any Swingline
Loans shall be outstanding, no modification, supplement or waiver with respect
to any provision of Sections 8 or 9 hereof shall be effective without the
concurrence of the Swingline Lender; and (c) any modification or supplement of
Sections 4.06 or 10 hereof, or of any of the rights or duties of the
Administrative Agent hereunder, shall require the consent of the Administrative
Agent.
SECTION
11.05. Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns (including any Affiliate
of any Issuing Bank that issues any Letters of Credit).
Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may
grant to a special purpose funding vehicle (an “SPC”) the option to fund all or
any part of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects
not to exercise such option or otherwise fails to fund all or any part of such
Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the
terms hereof. The Granting Lender shall provide the Administrative Agent and the
Company reasonable advance notice prior to the granting of an option to an SPC.
The funding of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were funded by such
Granting Lender. Each party hereto hereby agrees that a Granting Lender shall
remain liable for any indemnity or payment under this Agreement for which a
Granting Lender would otherwise be liable hereunder to the extent the granting
Lender provides such indemnity or makes such payment. Notwithstanding anything
to the contrary contained in this Agreement, any SPC may disclose on a
confidential basis its funding of Loans to any rating agency, commercial paper
dealer or provider of any surety or guarantee to such SPC. The grant of an
option pursuant to this Section shall not be deemed an assignment or a
participation pursuant to Section 11.06 and shall not reduce the Commitment of
the Granting Lender. This Section 11.05 may not be amended without the prior
written consent of each Granting Lender, all or any part of whose Loan is being
funded by an SPC at the time of such amendment.
SECTION
11.06. Assignments
and Participations.
(a) The
Company may not assign any of its rights or obligations hereunder or under the
Notes or with respect to any Letters of Credit without the prior consent of all
of the Lenders and the Administrative Agent and the Swingline
Lender.
(b) Each
Lender may assign any of its Loans, its Notes, if any, its LC Exposure and its
LC Obligations, and its Commitment (but only with the consent of the Company
(unless an Event of Default referred to in clause (b) of Article 9 hereof shall
have occurred and be continuing), the Administrative Agent and the Swingline
Lender, each of which consents will not be unreasonably withheld); provided
that
(i) no such
consent by the Company, the Administrative Agent or the Swingline Lender shall
be required in the case of any assignment to another Lender or an Affiliate of a
Lender, and only the consent of the Company (unless an Event of Default referred
to in clause (b) of Article 9 shall have occurred and be continuing, in which
case no consent shall be required) shall be required in the case of any
assignment to a Lender Affiliate, such consent not to be unreasonably
withheld;
(ii) except to
the extent the Company and the Administrative Agent shall otherwise consent, any
such partial assignment (other than to another Lender) shall be in an amount at
least equal to $10,000,000;
(iii) each such
assignment by a Lender of its Syndicated Loans, Syndicated Note, if any,
Commitment and LC Exposure shall be made in such manner so that the same portion
of its Syndicated Loans, Syndicated Note, if any, Commitment and LC Exposure is
assigned to the respective assignee;
(iv) the
assignee and assignor shall deliver to the Administrative Agent for its
acceptance an Assignment and Assumption for each such assignment;
and
(v) each
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
Upon
execution and delivery by the assignor and the assignee to the Administrative
Agent of such Assignment and Assumption, and upon consent thereto by the Company
and the Administrative Agent to the extent required above, the assignee shall
have, to the extent of such assignment (unless otherwise consented to by the
Company and the Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment, Loans and LC Exposure (or portions
thereof) assigned to it and specified in such Assignment and Assumption (in
addition to the Commitment, Loans and LC Exposure, if any, theretofore held by
such assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the Commitment (or portion thereof) so assigned. Upon each such
assignment the assigning Lender shall pay the Administrative Agent an assignment
fee of $3,500.
(c) A Lender
may sell or agree to sell to one or more other Persons (each a “Participant”) a
participation in all or any part of any Loans held by it, or in its Commitment,
provided that such Participant shall not have any rights or obligations under
this Agreement, any Note or any Letter of Credit (the Participant’s rights
against such Lender in respect of such participation to be those set forth in
the agreements executed by such Lender in favor of the Participant). All amounts
payable by the Company to any Lender under Section 5 hereof in respect of Loans
held by it, its Commitment and LC Exposure, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans,
Commitment and LC Exposure, and as if such Lender were funding each of such
Loans, Commitment and LC Exposure in the same way that it is funding the portion
of such Loans, Commitment and LC Exposure in which no participations have been
sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder except that such
Lender may agree with the Participant that it will not, without the consent of
the Participant, agree to (i) increase or extend the term of such Lender’s
Commitment, or extend the time or waive any requirement for the reduction or
termination, of such Lender’s Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans, the
reimbursement of any LC Disbursement or any portion of any fee hereunder payable
to the Participant, (iii) reduce the amount of any such payment of principal or
(iv) reduce the rate at which interest is
payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or
fee.
(d) In
addition to the assignments and participations permitted under the foregoing
provisions of this Section 11.06, any Lender may (without notice to the Company,
the Administrative Agent or any other Lender and without payment of any fee) (i)
assign and pledge all or any portion of its Loans, its Notes and its LC
Exposure, if any, to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank and
(ii) assign all or any portion of its rights under this Agreement, its Loans,
its Notes and its LC Exposure, and its LC Obligations, if any, to an Affiliate.
No such assignment shall release the assigning Lender from its obligations
hereunder.
(e) A Lender
or the Swingline Lender may furnish any information concerning the Company or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything
in this Section 11.06 to the contrary notwithstanding, neither any Lender nor
the Swingline Lender may assign or participate any interest in any Loan held by
it hereunder or its LC Exposure to the Company or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
(g) The
Swingline Lender may not (except as provided in Section 2.04 hereof) assign or
sell Participations in all or any part of its Swingline Loans, its Swingline
Note, if one, or its Swingline Commitment; provided that the Swingline Lender
may assign to another Lender all of its obligations, rights and benefits in
respect of its Swingline Loans and its Swingline Commitment (but only with the
consent of the Company which consent will not be unreasonably withheld). Upon
the effectiveness of any such assignment, the assignee shall have the
obligations, rights and benefits of the Swingline Lender hereunder holding the
Swingline Commitment and Swingline Loans assigned to it, and the assigning
Swingline Lender shall be released from its Swingline Commitment so
assigned.
SECTION
11.07. Survival. The
obligations of the Company under Sections 5.01, 5.04 and 11.03 hereof, and the
obligations of the Lenders under Sections 10.05 and 11.12 hereof, shall survive
the repayment of the Loans, the termination of the Commitments, the expiration
or termination of all Letters of Credit and, in the case of any Lender that may
assign any interest in its Commitment, Loans, LC Exposure or LC Obligations
hereunder, shall survive the making of such assignment, notwithstanding that
such assigning Lender may cease to be a “Lender” hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any Loan,
or by the issuance, amendment, renewal or extension of any Letter of Credit
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender shall be deemed to have waived, by reason of making any
Loan, or by the issuance, amendment, renewal or extension of any Letter of
Credit, any Default that may arise by reason of such representation or warranty
proving to have been false or misleading when made or deemed to be made,
notwithstanding that such Lender, the Swingline Lender or the Administrative
Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such Loan was
made or such Letter of Credit was issued, amended, renewed or extended, as the
case may be.
SECTION
11.08. Captions. The
table of contents and captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
SECTION
11.09. Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart.
SECTION
11.10. Governing
Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. The Company hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York County for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company hereby irrevocably waives,
to the fullest extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of the
venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION
11.11. Waiver
of Jury Trial. EACH OF
THE COMPANY, THE ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, THE ISSUING BANK,
THE ARRANGER, AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, THE LETTERS
OF CREDIT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
11.12. Treatment
of Certain Information; Confidentiality.
(a) The
Company acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Company or one or
more of its Subsidiaries (in connection with this Agreement or otherwise) by any
Lender or by one or more Subsidiaries or Affiliates of such Lender and the
Company hereby authorizes each Lender and the Swingline Lender to share any
information delivered to such Lender by the Company and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender or
the Swingline Lender to enter into this Agreement, with any such Subsidiary or
Affiliate, it being understood that any such Subsidiary or Affiliate receiving
such information shall be bound by the provisions of paragraph (b) below as if
it were a Lender hereunder. Such authorization shall survive the repayment of
the Loans and the termination of the Commitments.
(b) Each of
the Lenders, the Swingline Lender and the Administrative Agent agrees (on behalf
of itself and each of its Affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Company pursuant to this Agreement
that is identified by the Company as being confidential; provided that nothing
herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of this
Section 11.12), (ii) to the extent required by statute, rule, regulation or
judicial process, (iii) to counsel for any of the Lenders, the Swingline Lender
or the Administrative Agent, (iv) to bank examiners (or any other regulatory
authority having jurisdiction over any Lender, the Swingline Lender or the
Administrative Agent), or to auditors or accountants, (v) to the Administrative
Agent, the Swingline Lender or any other Lender (or to the Arranger), (vi) in
connection with any litigation to which any one or more of the Lenders, the
Swingline Lender or the Administrative Agent is a party, or in connection with
the enforcement of rights or remedies hereunder, (vii) to a Subsidiary or
Affiliate of such Lender as provided in paragraph (a) above or (viii) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the respective Lender a Confidentiality Agreement; provided
further, that in no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by the Company. The
obligations of any assignee that has executed a Confidentiality Agreement shall
be superseded by this Section 11.12 upon the date upon which such assignee
becomes a Lender hereunder pursuant to Section 11.06(b) hereof.
SECTION
11.13. The
Syndication Agent, Lead Arranger and Documentation Agents. Except
as expressly set forth herein, the Syndication Agents, Lead Arranger and the
Documentation Agents shall have (x) no obligations hereunder other than (in the
case of the Syndication Agents and the Documentation Agents) those of a Lender,
and (y) no liability to the Lenders hereunder.
SECTION
11.14. USA
Patriot Act. Each
Lender hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
|
ENGELHARD
CORPORATION |
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By: /s/
Mac C.P. Mak |
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Title: Treasurer |
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By: /s/
Daryl R. Barber |
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Title: Assistant
Treasurer |
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JPMORGAN
CHASE BANK, N.A., as Administrative Agent |
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By:
/s/
James Ramage |
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Title:
Managing
Director |
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SIGNATURE
PAGE TO
ENGELHARD
CORPORATION
CREDIT
AGREEMENT DATED
AS OF
MARCH 7, 2005
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ABN
AMRO BANK N.V., as Lender |
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By:
/s/
Robert H. Steelman |
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Title:
Director |
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By:
/s/
Michele Costello |
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Title:
Assistant Vice President |
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BANK
OF AMERICA N.A., as Lender |
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By:
/s/
Colleen Briscoe |
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Title:
Vice President |
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BANK
OF TOKYO-MITSUBISHI TRUST COMPANY, as Lender |
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By:
/s/
Chimie T. Pemba |
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Title:
Assistant Vice President |
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MELLON
BANK, N.A. |
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By:
/s/
William M. Feathers |
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Title:
Vice President |
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COMMERZBANK
AG, NEW YORK AND GRAND CAYMAN BRANCHES, as Lender |
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By:
/s/
Subash R. Viswanathan |
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Title:
Senior Vice President |
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By:
/s/
Barbara Peters |
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Title:
Assistant Treasurer |
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ING
BANK N.V. DUBLIN BRANCH, as Lender |
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By:
/s/
Aidan Neill |
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Title:
Vice President |
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By:
/s/
Alan Duffy |
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Title:
Director |
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KEYBANK
NATIONAL ASSOCIATION, as Lender |
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By:
/s/
Marianne T. Meil |
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Title:
Vice President |
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MIZUMO
CORPORATE BANK, LTD., as Lender |
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By:
/s/
Raymond Ventura |
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Title:
Senior Vice President |
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SUMITOMO
MITSUI BANKING CORPORATION, as Lender |
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By:
/s/
Edward McColly |
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Title:
Vice President & Department Head |
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WACHOVIA
BANK, NATIONAL ASSOCIATION, as Lender |
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By:
/s/
Barbara Van Merrten |
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Title:
Director |
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BANK
OF CHINA, NEW YORK, as Lender |
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By:
/s/
Bailin Zheng |
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Title:
General Manager |
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THE
BANK OF NEW YORK, as Lender |
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By:
/s/
Ernest Fung |
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Title:
Vice President |
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THE
BANK OF NOVA SCOTIA, as Lender |
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By:
/s/
Todd Meller |
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Title:
Managing Director |
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BANCA
INTESA S.p.A., as Lender |
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By:
/s/
Frank Maffei |
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Title:
Vice President |
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By:
/s/
Anthony F. Giobbi |
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Title:
First Vice President |
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SUNTRUST
BANK, as Lender |
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By:
/s/
Robert W. Maddox |
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Title:
Vice President |
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