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Exhibit
10.1
CREDIT
AGREEMENT
Dated as of November 2,
2007
This CREDIT AGREEMENT
is dated as of November 2, 2007 and is entered into by and
among Amgen Inc., a Delaware corporation (the “
Company ”), Citicorp USA, Inc. (“
CUSA ”), Barclays Bank PLC (“
Barclays ”) and each other financial
institution whose name is set forth on the signature pages hereof
as a Bank, Citibank, N.A. (“ Citibank ”),
as Issuing Bank, CUSA, as Administrative Agent, and Barclays, as
Syndication Agent. In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING
TERMS
1.1 Defined Terms
. As used in this Agreement, the following terms shall have the
meanings set forth below:
“ Additional
Bank ” has the meaning set forth in
Section 2.8(b) .
“ Additional
Commitment Bank ” has the meaning set forth in
Section 2.9(d) .
“ Administrative
Agent ” means CUSA, when acting in its capacity as
the administrative agent under any of the Loan
Documents.
“ Administrative
Agent’s Office ” means the Administrative
Agent’s address as set forth on the signature pages of this
Agreement, or such other address as the Administrative Agent
hereafter may designate by written notice to the Company and the
Banks.
“ Advance
” means any Advance made or to be made by any Bank to any
Borrower as provided in Article 2 , and includes each
Base Rate Advance and each EURO Rate Advance.
“
Affiliate ” means, as to any Person, any other
Person which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used in this
definition, “control” (and the correlative terms,
“ controlled by ” and “ under common
control with ”) shall mean possession, directly or
indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
“ Agent
Parties ” has the meaning set forth in
Section 13.25(c) .
“
Agreement ” means this Credit Agreement, either
as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended in accordance
with Section 13.2 .
“ Agreement to
Participate ” means an Agreement to Participate,
substantially in the form of Exhibit A .
“ Alternative
Currency ” means Euro.
“ Alternative
Currency Equivalent ” means, with respect to any
amount denominated in Dollars on any date of determination, the
amount of the Alternative Currency that could be purchased with
such amount of Dollars using the reciprocal of the foreign exchange
rate(s) specified in the definition of “Dollar
Equivalent,” as determined by the Administrative
Agent.
“ Alternative
Currency Loan ” means any Loan denominated in the
Alternative Currency. Each Alternative Currency Loan must be a
EURIBOR Rate Advance.
“ Alternative
Currency Payment Office ” means such office of
Citibank as shall be from time to time selected by the
Administrative Agent and notified by the Administrative Agent to
the Company and the Banks.
“
Arranger ” means each of Citigroup Global
Markets Inc. and Barclays Capital, the investment banking division
of Barclays, when acting in its capacity as joint lead arranger and
joint book runner under any of the Loan Documents.
“ Assignment
Agreement ” means an Assignment Agreement in
substantially the form of Exhibit G , executed by a Bank and
an Eligible Assignee of all or part of that Bank’s interest
hereunder.
“ Bank
” means the Persons identified as “Banks” and
listed on the signature pages of this Agreement and each Eligible
Assignee that shall become a party hereto pursuant to
Section 13.9 .
“ Banking
Day ” means any Monday, Tuesday, Wednesday, Thursday
or Friday, other than a day on which banks are authorized or
required to be closed in California or New York.
“
Barclays ” has the meaning set forth in the
introductory paragraph.
“ Base
Rate ”, for any day, means the higher of (i) the
rate of interest in effect on such day as publicly announced by
Citibank from time to time as its base commercial lending rate
(such base rate is not intended to be the lowest rate of interest
charged by Citibank) and (ii) the sum of 0.50% per annum
and the rate of interest determined by the Administrative Agent to
be the average overnight federal funds rate.
“ Base Rate
Advance ” means an Advance made hereunder that bears
interest as set forth in Section 3.1(b) and designated
as a Base Rate Advance in accordance with Article 2
.
“
Borrower ” means the Company and any Borrowing
Subsidiary; “ Borrowers ” means the
Company and each other Borrower, collectively.
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“ Borrowing
Subsidiary ” means any Eligible Subsidiary that has
executed an Agreement to Participate pursuant to
Section 12.1 .
“ Borrowing
Subsidiary Obligations ” has the meaning set forth in
Section 11.1 .
“ Calculation
Date ” means, in respect of a EURIBOR Rate Advance,
(a) the date falling two Banking Days (or such other period as
is customary in the relevant foreign exchange market for delivery
on the date of the relevant Advance) prior to the date of each
Advance, (b) the date falling two Banking Days (or such other
period as is customary in the relevant foreign exchange market for
delivery on the date of the relevant conversion or continuation of
a Loan) prior to the date of conversion or continuation of any
Advance pursuant to Section 2.5 , or (c) such
additional dates as the Administrative Agent or the Majority Banks
shall specify or as any Borrower may reasonably request, in which
case the Administrative Agent’s specification shall
prevail.
“ Capital
Lease ” means, as to any Person, a lease of any
Property by that Person as lessee that is, or should be in
accordance with Financial Accounting Standards Board Statement
No. 13, recorded as a “capital lease” on the
balance sheet of that Person prepared in accordance with Generally
Accepted Accounting Principles.
“ Cash
” means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are
treated as cash in accordance with Generally Accepted Accounting
Principles, except for amounts held by, or on deposit with,
another Person as cash collateral or other security.
“ Certificate of
a Senior Officer ” means a certificate signed by a
Senior Officer of the Person providing the certificate.
“
Citibank ” has the meaning set forth in the
introductory paragraph.
“ Closing
Date ” means the time and Banking Day on which the
conditions set forth in Section 8.1 are
satisfied.
“ Code
” means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
“
Commitment ” means the aggregate commitment of
the Banks (i) to make Advances pursuant to
Section 2.1(a) in an aggregate principal amount up to
the Dollar Equivalent of $2,500,000,000 and (ii) to purchase
an undivided interest in any Letters of Credit issued pursuant to
Section 2.6(a) , as such Commitment may be reduced in
accordance with Section 2.4 or increased in accordance
with Section 2.8 . The respective Pro Rata Shares of
the Banks on the Closing Date with respect to the Commitments are
set forth in Schedule 2.1 .
“ Company
” has the meaning set forth in the introductory
paragraph.
“ Compliance
Certificate ” means a certificate in the form of
Exhibit C , properly completed and signed by a Senior
Officer of the Company.
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“ Consolidated
Net Worth ” means, as of any date of determination,
the Shareholders’ Equity of the Company and its Consolidated
Subsidiaries on that date.
“ Consolidated
Subsidiary ” means, as of any date of determination
and with respect to any Person, any Subsidiary of that Person whose
financial data is, in accordance with Generally Accepted Accounting
Principles, reflected in that Person’s consolidated financial
statements.
“ Contractual
Obligation ” means, as to any Person, any provision
of any outstanding Securities issued by that Person or of any
material agreement, instrument or undertaking to which that Person
is a party or by which it or any of its Property is
bound.
“ Convert
,” “ Conversion ” and “
Converted ” each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to
Section 2.5 .
“ Current ERISA
Affiliate ”, as applied to any Person, means
(i) any corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Code
of which that Person is a member; (ii) any trade or business
(whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of
Section 414(c) of the Code of which that Person is a member;
and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Code of which
that Person, any corporation described in clause (i) above or
any trade or business described in clause (ii) above is a
member.
“ CUSA
” has the meaning set forth in the introductory
paragraph.
“ Daily
Margin ” means, for any date of determination, for
the designated Level, the Utilization Ratio applicable to such date
of determination and the Type of Advance, the following interest
rates per annum:
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Daily Margin when
Utilization Ratio is equal to
or less than 0.50:1.00 |
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Daily Margin when
Utilization Ratio is greater
than 0.50:1.00 |
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TYPE OF ADVANCE |
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TYPE OF ADVANCE |
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Base Rate
Advance |
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EURO Rate
Advance |
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Base Rate
Advance |
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EURO Rate
Advance |
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Level 1
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0 |
% |
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0.135 |
% |
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0 |
% |
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0.135 |
% |
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Level 2
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0 |
% |
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0.130 |
% |
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0 |
% |
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0.155 |
% |
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Level 3
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0 |
% |
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0.150 |
% |
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0 |
% |
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0.200 |
% |
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Level 4
|
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0 |
% |
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0.190 |
% |
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0 |
% |
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0.240 |
% |
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Level 5
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0 |
% |
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0.270 |
% |
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0 |
% |
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0.320 |
% |
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Level 6
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0 |
% |
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0.400 |
% |
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0 |
% |
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0.450 |
% |
For purposes of this definition,
(a) “ Utilization Ratio ” means, as
of any date of determination, the ratio of (1) Total
Outstandings as of such date to (2) the aggregate outstanding
amount of all Commitments (whether used or unused) in effect as of
such date, (b) if any change in the rating established by
S&P or Moody’s with respect to Long-Term Debt shall
result in a change in the
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Level, the change in the Daily Margin
shall be effective as of the date on which such rating change is
publicly announced, and (c) if the ratings established by both
of S&P and Moody’s with respect to Long-Term Debt are
unavailable for any reason for any day, then the applicable level
for such day shall be deemed to be Level 6 (or, if the Majority
Banks consent in writing, such other Level as may be reasonably
determined by the Majority Banks from a rating with respect to
Long-Term Debt for such day established by another rating agency
reasonably acceptable to the Majority Banks).
“ Debtor Relief
Laws ” means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights
of creditors generally.
“ Default
” means any Event of Default or any event that, with the
giving of any applicable notice or passage of time specified in
Section 9.1 , or both, would be an Event of
Default.
“ Default
Rate ” means the interest rate described in
Section 3.9 .
“ Designated
Deposit Account ” means a deposit account designated
by a Borrower in its Request for Loan submitted with respect to
each Loan.
“ Dollar
Equivalent ” means, as of any date of determination
(a) with respect to any amount denominated in Dollars, such
amount, and (b) with respect to any amount denominated in any
currency other than Dollars, the amount of Dollars that would be
required to purchase the amount of the Alternative Currency based
on the spot rate for the purchase by Citibank of the Alternative
Currency through its foreign exchange trading office prior to 11:00
A.M. (London time) on such date.
“ Dollar
Loan ” means any Loan denominated in
Dollars.
“ Dollars
” or “ $ ” means United States
Dollars.
“ Eligible
Assignee ” means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000;
(ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economical
Cooperation and Development (the “ OECD ”), or a
political subdivision of any such country and having a combined
capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of
the OECD; and (iii) any Person engaged in the business of
lending and that is an Affiliate of a Bank or of a Person of which
a Bank is a Subsidiary.
“ Eligible
Subsidiary ” means any of the wholly-owned
Subsidiaries of the Company.
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“ Employee
Benefit Plan ” means any “employee benefit
plan” as defined in Section 3(3) of ERISA which is, or
was at any time, maintained or contributed to by the Company or any
of its ERISA Affiliates.
“ EMU
” means the economic and monetary union in accordance with
the Treaty of Rome 1957, as amended by the Single European Act
1986, the Maastrict Treaty of 1992 and the Amsterdam Treaty of
1998, as amended from time to time.
“ EMU
Legislation ” means the legislative measures of the
European Council for the introduction of, changeover to or
operation of a single or unified European currency (whether known
as the “euro” or otherwise).
“ Environmental
Laws ” means all plans, policies or decrees binding
on the Company and its Subsidiaries in accordance with applicable
statutes, ordinances, orders, rules or regulations and all
statutes, ordinances, orders, rules or regulations and the like, in
each case, relating to (i) environmental matters, including,
without limitation, those relating to fines, injunctions,
penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the release or threatened release
of hazardous materials, (ii) the generation, use, storage,
transportation or disposal of hazardous materials, or
(iii) occupational safety and health, industrial hygiene, land
use or the protection of human, plant or animal health or welfare,
in any manner applicable to the Company or any of its Subsidiaries
or any of their respective properties, including, without
limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. § 9601 et seq .),
the Hazardous Materials Transportation Act (49 U.S.C. § 1801
et seq .), the Resource Conservation and Recovery Act
(42 U.S.C. § 6901 et seq .), the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq
.), the Clean Air Act (42 U.S.C. § 7401 et seq
.), the Toxic Substances Control Act (15 U.S.C. § 2601
et seq .), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. §136 et seq .), the
Occupational Safety and Health Act (29 U.S.C. § 651 et
seq .) and the Emergency Planning and Community Right-to-Know
Act (42 U.S.C. § 11001 et seq .), each as
amended or supplemented, and any analogous future or present local,
state and federal statutes and regulations promulgated pursuant
thereto, each as in effect as of the date of
determination.
“ ERISA
” means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced
and as in effect from time to time.
“ ERISA
Affiliate ”, as applied to any Person, means
(i) any corporation which is, or was at any time, a member of
a controlled group of corporations within the meaning of
Section 414(b) of the Code of which that Person is, or was at
any time, a member; (ii) any trade or business (whether or not
incorporated) which is, or was at any time, a member of a group of
trades or businesses under common control within the meaning of
Section 414(c) of the Code of which that Person is, or was at
any time, a member; and (iii) any member of an affiliated
service group within the meaning of Section 414(m) or
(o) of the Code of which that Person, any corporation
described in clause (i) above or any trade or business
described in clause (ii) above is, or was at any time, a
member.
“ ERISA
Event ” means (i) a “reportable
event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension
Plan
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(excluding those for which the provision
for 30-day notice to the PBGC, or the penalty for failure to
provide such notice, has been waived by regulation or by PBGC
technical update); (ii) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to
any Pension Plan (whether or not waived in accordance with
Section 412(d) of the Code) or the failure to make by its due
date a required installment under Section 412(m) of the Code
with respect to any Pension Plan or the failure to make any
required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by the
Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Sections 4063 or
4064 of ERISA; (v) the institution by the PBGC of proceedings
to terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on the Company
or any of its ERISA Affiliates pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal by the
Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan if there is any potential liability
therefor, or the receipt by the Company or any of its ERISA
Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the occurrence of
an act or omission which could give rise to the imposition on the
Company or any of its ERISA Affiliates of fines, penalties, taxes
or related charges under Chapter 43 of the Code or under
Section 409 or 502(c), (i) or (l) or 4071 of ERISA
in respect of any Employee Benefit Plan; (ix) the assertion of
a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the
assets thereof, or against Company or any of its ERISA Affiliates
in connection with any such Employee Benefit Plan; (x) receipt
from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Code) to qualify under
Section 401(a) of the Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from
taxation under Section 501(a) of the Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Code or pursuant to ERISA with respect to any Pension
Plan.
“ EURIBOR
Rate ” means, for any Interest Period for each
EURIBOR Rate Advance, an interest rate per annum equal to
(i) the offered quotation which appears on the page of the
Reuters Screen which displays an average rate of the Banking
Federation of the EMU for the Euro (being currently page LIBOR01)
for such period at or about 10:00 a.m. (London time) two
Eurocurrency Banking Days before the first day of such Interest
Period or, if such page or such service shall cease to be
available, such other page or such other service for the purpose of
displaying an average rate of the Banking Federation of the EMU as
the Administrative Agent, after consultation with the Banks and the
Company, shall reasonably select or (ii) if no quotation for
the Euro for the relevant period is displayed and the
Administrative Agent has not selected an alternative service on
which a quotation is displayed, the average (rounded upwards to the
nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which
deposits in Euros are offered by each of the Reference Banks to
leading banks in the European interbank market at or about 10:00
a.m. (London time) two Eurocurrency
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Banking Days before the first day of
such Interest Period in an amount substantially equal to the
respective Reference Bank’s EURIBOR Rate Advance and for a
period equal to such Interest Period. For any Interest Period with
respect to any EURIBOR Rate Advance and advanced by a Bank required
to comply with the relevant requirements of the United Kingdom or
any Participating Member State, “EURIBOR Rate” means
the sum of (i) the rate determined in accordance with the
preceding sentence of this definition and (ii) the Mandatory
Cost Rate for such Interest Period.
“ EURIBOR Rate
Advance ” means an Advance in Euros which bears
interest at a rate per annum determined on the basis of the EURIBOR
Rate. All EURIBOR Rate Advances shall be denominated in
Euros.
“ Euro
” and “ € ” means the lawful
currency of the Participating Member States introduced in
accordance with the EMU Legislation.
“ EURO Rate
Advance ” means, as the context may require, a
Eurodollar Rate Advance or a EURIBOR Rate Advance.
“ Eurocurrency
Banking Day ” means (a) if such day relates to
any Eurodollar Rate Advance, any Banking Day on which dealings in
Dollar deposits are conducted by and among banks in the London
interbank offer market for Dollar deposits or (b) if such day
relates to any EURIBOR Rate Advance, a TARGET Day.
“ Eurocurrency
Lending Office ” means, as to each Bank, its office
or branch so designated by written notice to the Company and the
Administrative Agent as its Eurocurrency Lending Office. If no
Eurocurrency Lending Office is designated by a Bank, its
Eurocurrency Lending Office shall be its office at its address for
purposes of notices hereunder.
“ Eurocurrency
Market ” means, with respect to any EURO Rate
Advance, the London interbank offer market for Dollar and Euro
deposits.
“ Eurodollar
Rate ” means, for any Interest Period for each
Eurodollar Rate Advance, an interest rate per annum equal to
(i) the offered rate (if any) appearing on the Reuters Screen
which displays British Bankers’ Association Interest
Settlement Rates for deposits of Dollars for a period equal to the
Interest Period relating to that Advance at or about 11:00 a.m.
(London time) two Eurocurrency Banking Days before the first day of
such Interest Period with respect to each Eurodollar Rate Advance,
or (ii) if the Administrative Agent is unable to access the
Reuters Screen or if the relevant rate is not displayed, the
average (rounded upward to the nearest whole multiple of 1/16
of 1% per annum, if such average is not such a multiple) of
the rate per annum at which each of the Reference Banks was
offering to leading banks in the London interbank market deposits
in Dollars of an equivalent amount and for such Interest Period at
or about 11:00 a.m. (London time) two Eurocurrency Banking Days
before the first day of such Interest Period with respect to each
Eurodollar Rate Advance. For the purposes of this definition,
“Reuters Screen” means the display on the Reuters
Service or such other service as may be nominated by the British
Bankers’ Association Interest Settlement Rates for deposits
in Dollars.
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“ Eurodollar Rate
Advance ” means an Advance that bears interest based
on the Eurodollar Rate. All Eurodollar Rate Advances shall be
denominated in Dollars.
“ Event of
Default ” shall have the meaning provided in
Section 9.1 .
“ Extending
Bank ” has the meaning set forth in
Section 2.9(e) .
“ Extension
Date ” has the meaning set forth in
Section 2.9(a) .
“ Fiscal
Quarter ” means the fiscal quarter of the Company
consisting of a three month fiscal period ending on each
March 31, June 30, September 30 and
December 31.
“ Fiscal
Year ” means the fiscal year of the Company
consisting of a twelve month fiscal period ending on each
December 31.
“ Foreign
Bank ” has the meaning set forth in
Section 13.27(a)(i) .
“ Generally
Accepted Accounting Principles ” means, as of any
date of determination, accounting principles set forth as
“generally accepted” in then currently effective
Statements of the Auditing Standards Board of the American
Institute of Certified Public Accountants, or, if no such
Statements are then in effect, that are then approved by such other
entity as may be approved by a significant segment of the
accounting profession in the United States of America. The term
“ Generally Accepted Accounting Principles
” shall be read in each instance as if the words “
consistently applied ” followed immediately
thereafter, meaning that the accounting principles applied are
consistent in all material respects (except for changes concurred
in by the Company’s independent public accountants) to those
applied at prior dates or for prior periods.
“ Governmental
Agency ” means (a) any foreign, federal, state,
county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public
body, (c) any court or administrative tribunal or
(d) with respect to any Person, any arbitration tribunal or
other nongovernmental authority to whose jurisdiction that Person
has consented.
“
Guaranty ” has the meaning set forth in
Section 11.1 .
“ Hostile
Acquisition ” means the acquisition of over 50% of
the capital stock or other equity interests of a Person (the
“ Target ”) through a tender offer or
similar solicitation of the owners of such capital stock or other
equity interests which has not been approved (prior to such
acquisition) by resolutions of the Board of Directors or
shareholders of the Target or by similar action if the Target is
not a corporation and as to which such approval has not been
withdrawn.
“ Increase
Date ” has the meaning set forth in
Section 2.8(c) .
“ Increased
Commitments ” has the meaning set forth in
Section 2.8(a) .
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“
Indebtedness ” means, as to any Person,
(a) all indebtedness of such Person for borrowed money,
(b) that portion of the obligations of such Person under
Capital Leases which is properly recorded as a liability on a
balance sheet of that Person prepared in accordance with Generally
Accepted Accounting Principles, (c) to the extent of the
outstanding Indebtedness thereunder, any obligation of such Person
that is evidenced by a promissory note or other similar instrument
representing an extension of credit to such Person, whether or not
for borrowed money, (d) any obligation of such Person for the
deferred purchase price of Property or services ( other than
trade or other accounts payable in the ordinary course of
business), (e) any obligation of such Person of the nature
described in clauses (a) , (b) , (c) or
(d) above that is secured by a Lien on assets of such
Person, whether or not that Person has assumed such obligation or
whether or not such obligation is non-recourse to the credit of
such Person, but only to the extent of the lesser of the face
amount of the obligation or the fair market value of the assets so
subject to the Lien, (f) obligations of such Person arising
under acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (g) any obligation of such
Person to reimburse the issuer of any letter of credit issued for
the account of such Person upon which and only to the extent a draw
has been made and (h) in the case of the Company, any
obligations of the Company under a Swap Agreement. Notwithstanding
the provisions listed above, Indebtedness shall not include any
intercompany loans made by the Company to a Subsidiary or by any
Subsidiary to another Subsidiary or by any Subsidiary to the
Company. As of any date of determination, the amount of the
Company’s Indebtedness pursuant to any Swap Agreement shall
be equal to the negative marked-to-market value for the
Company.
“
Indemnitees ” has the meaning set forth in
Section 13.12 .
“ Interest
Period ” means, as to each EURO Rate Advance, the
period commencing on the date specified by the Borrower of such
Advance pursuant to Section 2.1(b) and ending 1, 2, 3
or 6 months thereafter, as specified by the applicable Borrower in
the applicable Request for Loan; provided that:
(a) The first day of any
Interest Period shall be a Eurocurrency Banking Day;
(b) Any Interest Period that
would otherwise end on a day that is not a Eurocurrency Banking Day
shall be extended to the next succeeding Eurocurrency Banking Day
unless such Eurocurrency Banking Day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Eurocurrency Banking Day; and
(c) No Interest Period shall
extend beyond the final Maturity Date.
“ Issue
” means the issuance or extension of, or amendment to, any
Letter of Credit.
“ Issuing
Bank ” means Citibank and any other Bank acceptable
to the Company and the Administrative Agent that agrees in writing
to perform the duties of an Issuing Bank under this
Agreement.
10
“ Laws
” means, collectively, all foreign, federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and
administrative or controlling precedents of any Governmental
Agency.
“ LC Issuance
Fee ” means a fee payable to the applicable Issuing
Bank as provided in Section 3.4 .
“ LC
Reimbursement Fee ” means a fee payable to the
Administrative Agent, for the pro rata benefit of the Banks, as
provided in Section 3.5 .
“ Letters of
Credit ” means any letters of credit issued by an
Issuing Bank pursuant to Section 2.6(a) , either as
originally executed or as the same may from time to time be
supplemented, modified, reviewed, extended or
supplanted.
“ Level
” means Level 1, Level 2, Level 3, Level 4, Level 5 or Level
6, as the case may be, provided , however that if, as
of any date of determination, there is more than a one Level
difference between (x) the Level that would be applicable if
such Level were determined solely by reference to the rating
assigned by S&P (the “ Hypothetical S&P
Level ”) and (y) the Level that would be
applicable if such Level were determined solely by reference to the
rating assigned by Moody’s (the “ Hypothetical
Moody’s Level ”) then the “Level”
for such date shall be deemed to be the Level immediately below the
higher of the Hypothetical S&P Level and the Hypothetical
Moody’s Level (for these purposes Level 1 being higher than
Level 2, etc.).
“ Level 1
” means that, as of any date of determination, the Long-Term
Debt carries either of the following ratings:
“AA-” or higher
from S&P
“Aa3” or higher
from Moody’s.
“ Level 2
” means that, as of any date of determination, the criteria
of Level 1 are not satisfied and the Long-Term Debt carries either
of the following ratings:
“A+” from
S&P
“A1” from
Moody’s.
“ Level 3
” means that, as of any date of determination, the criteria
of neither Level 1 nor Level 2 are satisfied and the Long-Term Debt
carries either of the following ratings:
“A” from
S&P
“A2” from
Moody’s.
“ Level 4
” means that, as of any date of determination, the criteria
of none of Level 1, Level 2 or Level 3 are satisfied and the
Long-Term Debt carries either of the following ratings:
“A-” from
S&P
“A3” from
Moody’s.
11
“ Level 5
” means that, as of any date of determination, the criteria
of none of Level 1, Level 2, Level 3 or Level 4 are satisfied and
the Long-Term Debt carries either of the following
ratings:
“BBB+” from
S&P
“Baa1” from
Moody’s.
“ Level 6
” means that, as of any date of determination, the criteria
of none of Level 1, Level 2, Level 3, Level 4 or Level 5 are
satisfied.
“ Lien
” means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or
charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property,
including any agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in
the nature of a security interest, and/or the filing of or
agreement to give any financing statement ( other than a
precautionary financing statement with respect to a lease that is
not in the nature of a security interest) under the Uniform
Commercial Code or comparable Law of any jurisdiction with respect
to any Property.
“ Loan
” means any group of Advances made at any one time by the
Banks pursuant to Article 2 .
“ Loan
Documents ” means, collectively, this Agreement, the
Notes, any Request for Loan, any Agreement to Participate, any
Letter of Credit, and any Request for Letter of Credit, in each
case either as originally executed or as the same may from time to
time be supplemented, modified, amended, restated, extended or
supplanted.
“ Long-Term
Debt ” means senior, unsecured, long-term-debt
securities of the Company.
“ Majority
Banks ” means, as of any date of determination, Banks
to which more than 50% of the aggregate Total Outstandings is owed
or, if Total Outstandings are zero, Banks whose aggregate Pro Rata
Shares are greater than 50% of the Commitment then in effect. For
purposes of this definition, Total Outstandings in respect of the
then undrawn portion of outstanding Letters of Credit and
unreimbursed drawings under Letters of Credit shall be deemed to be
owing to each Bank ratably in accordance with their respective Pro
Rata Shares.
“ Mandatory Cost
Rate ” means, with respect to any period, a rate per
annum determined in accordance with Schedule 1.1
.
“ Material
Adverse Effect ” means a circumstance or set of
circumstances or events affecting the business, financial condition
or operations of the Company and its Subsidiaries, taken as a
whole, that have a material adverse effect, individually or in the
aggregate, upon the ability (i) of the Company and its
Subsidiaries, taken as a whole, to perform under the Loan Documents
or (ii) of the Banks to enforce, the Obligations under the
Loan Documents.
12
“ Maturity
Date ” means November 2, 2012, subject to the
extension thereof pursuant to Section 2.9 ;
provided , however that the Maturity Date for any
Bank that is a Non-Extending Bank to any requested extension
pursuant to Section 2.9 shall be the Maturity Date in
effect immediately prior to the applicable Extension Date for all
purposes of this Agreement.
“
Moody’s ” means Moody’s Investors
Service, Inc. or any successor thereto.
“ Multiemployer
Plan ” means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Company
or any of its ERISA Affiliates is contributing, or ever has
contributed, or to which the Company or any of its ERISA Affiliates
has, or ever has had, an obligation to contribute.
“ Non Extending
Bank ” has the meaning set forth in
Section 2.9(b) .
“ Notes
” means any of the promissory notes made by the Borrowers in
favor of a Bank in accordance with Section 2.1(e) to
evidence revolving Advances made by that Bank under the Commitment,
substantially in the form of Exhibit B , as originally
executed or as the same may from time to time be supplemented,
modified, amended, renewed or extended.
“ Notice
Date ” has the meaning set forth in
Section 2.9(b) .
“ Notice of
Conversion/Continuation ” has the meaning specified
in Section 2.5(a) .
“
Obligations ” means all present and future
monetary obligations of every kind or nature of the Borrowers at
any time and from time to time owed to the Arrangers, the
Administrative Agent, the Syndication Agent, any Issuing Bank or
the Banks or any one or more of them under any one or more of the
Loan Documents, whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent,
including interest that accrues after the commencement of
any proceeding under any Debtor Relief Law by or against the
Company or any Subsidiary of the Company.
“ Original
Currency ” has the meaning set forth in
Section 13.26(a) .
“ Other
Currency ” has the meaning set forth in
Section 13.26(a) .
“ Other
Taxes ” has the meaning set forth in
Section 3.12(d)(ii) .
“ Participating
Member State ” means each state so described in any
EMU Legislation.
“ PBGC
” means the Pension Benefit Guaranty Corporation (or any
successor thereto).
“ Pension
Plan ” means any Employee Benefit Plan other than a
Multiemployer Plan, that is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
13
“ Permitted
Encumbrances ” means:
(a) inchoate Liens incident
to construction or maintenance of real property, or Liens incident
to construction or maintenance of real property, now or hereafter
filed of record for sums not yet delinquent or being contested in
good faith, if reserves or other appropriate provisions, if any, as
shall be required by GAAP shall have been made therefor;
(b) Liens for taxes and
assessments on real property which are not yet past due, or Liens
for taxes and assessments on real property for which adequate
reserves have been set aside and are being contested in good faith
by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of non-payment of the obligations
secured by such Liens, no such material real property is subject to
a material risk of loss or forfeiture;
(c) easements, exceptions,
reservations, or other agreements granted or entered into after the
date hereof for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes,
dikes, canals, ditches, the removal of oil, gas, coal, or other
minerals, and other like purposes affecting real property which in
the aggregate do not materially burden or impair the fair market
value or use of such real property for the purposes for which it is
or may reasonably be expected to be held;
(d) rights reserved to or
vested in any Governmental Agency by Law to control or regulate, or
obligations or duties under Law to any Governmental Agency with
respect to, the use of any real property;
(e) rights reserved to or
vested in any Governmental Agency by Law to control or regulate, or
obligations or duties under Law to any Governmental Agency with
respect to, any right, power, franchise, grant, license, or
permit;
(f) present or future zoning
laws and ordinances or other laws and ordinances restricting the
occupancy, use, or enjoyment of real property;
(g) statutory Liens, other
than those described in clauses (a) or (b) above, arising
in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith, if
reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made therefor;
(h) Liens consisting of
pledges or deposits to secure obligations under workers’
compensation laws or similar legislation, including Liens of
judgments thereunder which are not currently
dischargeable;
(i) Liens consisting of
pledges or deposits of Property to secure performance in connection
with operating leases made in the ordinary course of business to
which the Company or a Subsidiary is a party as lessee,
provided the aggregate value of all such pledges and
deposits in connection with any such lease does not at any time
exceed 16-2/3% of the annual fixed rentals payable under such
lease;
14
(j) Liens consisting of
deposits of Property to secure statutory obligations of the Company
or a Subsidiary of the Company in the ordinary course of its
business;
(k) Liens consisting of
deposits of Property to secure (or in lieu of) surety, appeal or
customs bonds in proceedings to which the Company or a Subsidiary
of the Company is a party in the ordinary course of its business,
but not in excess of $25,000,000;
(l) purchase money Liens or
purchase money security interests upon or in any property acquired
or held by the Company or any Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure
indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(m) Liens on an asset to
secure all or any part of the cost of development or construction
of such asset or improvements thereon and which shall be released
or satisfied within 120 days after completion of such development
or construction;
(n) Liens on an asset created
in connection with the acquisition, construction or development of
additions, extensions or improvements to such asset which shall be
financed by obligations described in Sections 142, 144(a) or 144(c)
of the Code, as amended, or by obligations entitled to
substantially similar tax benefits under other legislation or
regulations in effect from time to time;
(o) Liens on property subject
to escrow or similar arrangements established in connection with
litigation settlements;
(p) Liens on an asset
required in connection with any program, law, statute or regulation
of any state or local authority which provides financial or tax
benefits not available without such Lien, provided that
substantially all of the obligations secured by such Lien are
obligations that are in lieu of, or reduce, a property tax or other
payment obligation that itself would have been secured by a Lien
permitted hereunder; and
(q) Liens on Property
securing any intercompany loans made by the Company to a Subsidiary
or by any Subsidiary to another Subsidiary.
“ Person
” means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business
association, tribe, firm, joint venture, Governmental Agency, or
otherwise.
“
Platform ” has the meaning set forth in
Section 13.25(b) .
“
Property ” means any interest in any kind of
property or asset, whether real, personal or mixed, or tangible or
intangible.
“ Pro Rata
Share ” means, with respect to each Bank, with
respect to the Commitment, and any Loan made under any portion of
the Commitment, the percentage set forth opposite the name of that
Bank and that portion of the Commitment on Schedule 2.1 as
modified from time to time. The Pro Rata Share of each Bank shall
be deemed to have been modified at
15
each time the Commitments of the Banks
are modified in accordance with Section 2.8, 2.9 or
13.9.
“ Reference
Banks ” means Citibank and Barclays.
“
Register ” has the meaning set forth in
Section 13.9(v) .
“ Regulation
D ” means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
“ Regulation
U ” means Regulation U, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
“ Request for
Letter of Credit ” means a written request for a
Letter of Credit substantially in the form of Exhibit E, together
with the standard form of application for letter of credit used by
the applicable Issuing Bank, signed by a Senior Officer of the
applicable Borrower and properly completed to provide all
information required to be provided therein.
“ Request for
Loan ” means a written request for a Loan
substantially in the form of Exhibit F, signed by a Senior Officer
of the applicable Borrower and properly completed to provide all
information required to be included therein.
“ Requirement of
Law ” means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment,
award, decree, writ or determination of a Governmental Agency, in
each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is
subject.
“ S&P
” means Standard & Poor’s Ratings Group, a
division of The McGraw-Hill Companies or any successor
thereto.
“
Securities ” means any capital stock, share,
voting trust certificate, bond, debenture, note or other evidence
of indebtedness, limited partnership interest, or any warrant,
option or other right to purchase or acquire any of the
foregoing.
“ Senior
Officer ” means the (a) chief executive officer,
(b) chief operating officer, (c) chief financial officer,
(d) corporate controller, (e) treasurer,
(f) assistant treasurer, (g) any senior vice president,
or (h) any executive vice president, in each case whatever the
title nomenclature may be, of the Person designated.
“
Shareholders’ Equity ” means, as of any
date of determination, shareholders’ equity as of that date
determined in accordance with Generally Accepted Accounting
Principles; provided that there shall be excluded from
Shareholders’ Equity any amount attributable to capital stock
that is, directly or indirectly, required to be redeemed or
repurchased by the issuer thereof at a specified date or upon the
occurrence of specified events or at the election of the holder
thereof.
16
“ Significant
Subsidiary ” has the meaning set forth in
Section 4.4 .
“
Subsidiary ” means, as of any date of
determination and with respect to any Person, any corporation,
limited liability company, partnership or joint venture, whether
now existing or hereafter organized or acquired: (a) in the
case of a corporation or limited liability company, of which a
majority of the securities or other ownership interests having
ordinary voting power for the election of directors or other
governing body (other than securities or other ownership interests
having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person and/or one or
more Subsidiaries of such Person, or (b) in the case of a
partnership or joint venture, of which such Person or a Subsidiary
of such Person is a general partner or joint venturer or of which a
majority of the partnership or other ownership interests are at the
time beneficially owned by such Person and/or one or more of its
Subsidiaries, excluding any partnership or joint venture over which
the Person or Subsidiary of such Person does not exercise actual
control.
“ Swap
Agreement ” means a written agreement between the
Company and one or more financial institutions providing for
“ swap ”, “ collar ” or other
interest rate protection (other than “caps”) with
respect to any Indebtedness.
“ Syndication
Agent ” means Barclays, when acting in its capacity
as the syndication agent under any of the Loan
Documents.
“ TARGET
Day ” means any day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer (TARGET)
System (or, if such clearing system ceases to be operative, such
other clearing system (if any) determined by the Administrative
Agent to be a suitable replacement) is operating.
“ Taxes
” has the meaning set forth in Section 3.12(d)(i)
.
“ Total
Outstandings ” means, as of any date of
determination, the sum on that date of (a) the aggregate
Dollar Equivalent of the outstanding principal amount of the
Advances, plus (b) the aggregate then undrawn portion
of Letters of Credit which are issued and outstanding, plus
(c) the aggregate unreimbursed drawings under Letters of
Credit.
“ Type
” when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Advance
or a EURO Rate Advance.
“ Unused
Portion ” means the Commitment, less Total
Outstandings as to the Commitment.
1.2 Use of Defined
Terms . Any defined term used in the plural shall refer to
all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the
relevant class.
1.3 Accounting
Terms . All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be
prepared in conformity with, Generally Accepted
Accounting
17
Principles applied on a consistent
basis, except as otherwise specifically prescribed herein and
except for changes concurred in by the Company’s independent
public accountants.
1.4 Rounding .
Any financial ratios required to be maintained by the Company
pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is
expressed in this Agreement and rounding the result up or down to
the nearest number (with a round-up if there is no nearest number)
to the number of places by which such ratio is expressed in this
Agreement.
1.5 Exhibits and
Schedules . All Exhibits and Schedules to this Agreement,
either as originally existing or as the same may from time to time
be supplemented, modified or amended, are incorporated herein by
this reference. A matter disclosed on any Schedule shall be deemed
disclosed on all Schedules.
1.6 References to
“the Company and its Subsidiaries” . Any
reference herein to “the Company and its Subsidiaries”
or the like shall refer solely to the Company during such times, if
any, as the Company shall have no Subsidiaries.
1.7 Miscellaneous
Terms . The term “or” is disjunctive; the term
“and” is conjunctive. The term “shall” is
mandatory; the term “may” is permissive. Masculine
terms also apply to females; feminine terms also apply to males.
The term “including” is by way of example and not
limitation.
1.8 Exchange Rates;
Alternative Currency Equivalents . On each Calculation
Date, the Administrative Agent shall determine the exchange rate as
of such Calculation Date to be used for calculating relevant Dollar
Equivalent and Alternative Currency Equivalent amounts. The
exchange rates so determined shall become effective on such
Calculation Date and shall for all purposes of this Agreement
(other than any provision expressly requiring the use of a current
exchange rate) be the exchange rates employed in converting any
amounts between the applicable currencies. Wherever in this
Agreement in connection with an Advance, conversion or continuation
of a Loan, an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Advance or Loan is
denominated in the Alternative Currency, such amount shall be the
Alternative Currency Equivalent of such Dollar amount (rounded to
the nearest 1,000 units of the Alternative Currency), as determined
by the Administrative Agent. Each provision of this Agreement shall
be subject to such reasonable changes of construction as the
Administrative Agent may, with the approval of the Company (not to
be unreasonably withheld), from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state
of the European Union and any relevant market conventions or
practices relating to the Euro.
ARTICLE 2
LOANS AND LETTERS OF
CREDIT
2.1 Advances -
General .
(a) Subject to the terms and
conditions set forth in this Agreement, each Bank shall, at any
time and from time to time from the Closing Date through the
Maturity Date
18
applicable to such Bank, according to
its Pro Rata Share of the Commitment, make Advances to the
Borrowers under the Commitment in such amounts in Dollars or in the
Alternative Currency as the Borrowers may request that do not
exceed in the aggregate at any one time outstanding the amount of
that Bank’s Pro Rata Share of the Commitment; provided
that, giving effect to the Loan of which such Advance is a part,
(i) the Total Outstandings shall not exceed the Commitment and
(ii) the sum of all Advances then outstanding plus the
face amount of all Letters of Credit then outstanding plus
the sum of all unreimbursed drawings under Letters of Credit shall
not exceed the Commitment. Subject to the limitations set forth
herein, the Borrowers may borrow and repay under the Commitment
without premium or penalty.
(b) Subject to the next
sentence, each Loan under this Section 2.1 shall be
made pursuant to a Request for Loan which shall specify the
requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan and (iv) Interest Period for
such Loan. Unless the Administrative Agent has notified, in its
sole and absolute discretion, the Borrowers to the contrary, a Loan
may be requested by telephone by a Senior Officer of the applicable
Borrower, in which case such Borrower shall promptly confirm such
request by transmitting a telecopy of, or at the Administrative
Agent’s request by mailing, a Request for Loan executed by a
Senior Officer of such Borrower conforming to the preceding
sentence to the Administrative Agent.
(c) Promptly following
receipt of a Request for Loan (or the receipt of a substitute
request permitted under the second sentence of
Section 2.1(b) ), the Administrative Agent shall notify
each Bank by telephone (so long as such notice by telephone is
promptly followed by a notice in writing) or telecopier (the method
of notice shall be at the Administrative Agent’s option) of
the date and type of the Loan, the applicable Interest Period and
the amount of that Bank’s Pro Rata Share of the Loan. Not
later than 2:00 p.m., New York time, on the date specified for any
Loan subject to the provisions of Sections 2.2 and
2.3 , each Bank shall make its Pro Rata Share of the Loan in
immediately available funds available to the Administrative Agent
at the Administrative Agent’s Office. Upon fulfillment of the
applicable conditions set forth in Article 8 and subject to
the provisions of Sections 2.2 and 2.3 , all Advances
shall be credited in immediately available funds to the Designated
Deposit Account.
(d) Each Loan under the
Commitment shall be in a minimum amount of $2,000,000 (or
€2,000,000, if the applicable borrowing is in Euros) and
multiples of $1,000,000 or €1,000,000, as applicable, in
excess of that amount.
(e) If so requested by any
Bank by written notice to the Company (with a copy to the
Administrative Agent) at least two Banking Days prior to the
Closing Date or at any time thereafter, each Borrower shall execute
and deliver to such Bank (and/or, if applicable and if so specified
in such notice, to any Person who is an assignee of such Bank
pursuant to Section 13.9 ) on the Closing Date (or, if
such notice is delivered after the Closing Date, promptly after the
Company’s receipt of such notice) a promissory note or
promissory notes to evidence such Bank’s Advances under its
Pro Rata Share of the Commitment, substantially in the form of
Exhibit B .
(f) A Request for Loan shall
be irrevocable upon the Administrative Agent’s first
notification thereof.
19
2.2 Base Rate
Advances . Each request by a Borrower for a Base Rate
Advance shall be made pursuant to a Request for Loan (or telephonic
request for Loan referred to in the second sentence of
Section 2.1(b) , if applicable) received by the
Administrative Agent, at the Administrative Agent’s Office,
not later than 12:00 noon, New York time, on the date of a proposed
Base Rate Advance. All Advances denominated in Dollars shall
constitute Base Rate Advances unless properly designated as
Eurodollar Rate Advances pursuant to Section 2.3
.
2.3 EURO Rate
Advances .
(a) Each request by a
Borrower for a Eurodollar Rate Advance shall be made pursuant to a
Request for Loan (or telephonic request for Loan referred to in the
second sentence of Section 2.1(b) , if applicable)
received by the Administrative Agent, at the Administrative
Agent’s Office, not later than 1:00 p.m., New York time, at
least three (3) Eurocurrency Banking Days before the first day
of the applicable Interest Period. Each request by a Borrower for a
EURIBOR Rate Advance shall be made pursuant to a Request for Loan
(or telephonic request for Loan referred to in the second sentence
of Section 2.1(b) , if applicable) received by the
Administrative Agent, at the Administrative Agent’s Office,
not later than 9:30 a.m., London time, at least three
(3) Eurocurrency Banking Days before the first day of the
applicable Interest Period.
(b) On the second
Eurocurrency Banking Day before the first day of the applicable
Interest Period in the case of Eurodollar Rate Advances and EURIBOR
Rate Advances, the Administrative Agent shall determine the
applicable Eurodollar Rate or EURIBOR Rate, as the case may be
(which determination shall be conclusive in the absence of manifest
error), and prior to 1:00 p.m., New York time on that same day
shall give notice of the same to the applicable Borrower and the
Banks by telephone or telecopier (the method of notice shall be at
the Administrative Agent’s option).
(c) Unless all of the Banks
otherwise consent, no EURO Rate Advance may be requested during the
continuance of an Event of Default.
(d) Prior to the submission
of a Request for Loan with respect to a EURO Rate Advance, any
Borrower may request the Administrative Agent to provide a
non-binding estimate of the Eurodollar Rate or EURIBOR Rate that
would then apply in the event such Borrower submitted a Request for
Loan.
2.4 Voluntary Reduction
of Commitment . The Company shall have the right, at any
time and from time to time, without penalty or charge, upon at
least two (2) days’ prior written notice to the
Administrative Agent, to voluntarily reduce, permanently and
irrevocably, in a minimum amount of $5,000,000 and multiples of
$1,000,000 in excess thereof, or to terminate, all or a portion of
the then Unused Portion of the Commitment; provided that any
such reduction or termination shall be accompanied by payment of
all accrued and unpaid facility fees with respect to the portion of
the Commitment being reduced or terminated.
2.5 Voluntary
Conversion or Continuation of Advances .
(a) Each Borrower may on any
Banking Day upon notice given to the Administrative Agent not later
than 12:00 noon (New York City time) on the third
Eurocurrency
20
Banking Day prior to the date of the
proposed Conversion or continuance (a “ Notice of
Conversion/Continuation ”) and subject to the
provisions of Section 2.3 , (1) Convert all or any
portion of Advances of one Type into Advances made to such Borrower
of another Type and (2) upon the expiration of any Interest
Period applicable to Advances which are EURO Rate Advances,
continue all (or, subject to Section 2.3 , any portion
of) such Advances as EURO Rate Advances and the succeeding Interest
Period(s) of such continued Advances shall commence on the last day
of the Interest Period of the Advances to be continued;
provided , however , that any Conversion of any EURO
Rate Advances into Base Rate Advances shall be made on, and only
on, the last day of an Interest Period for such EURO Rate Advances.
Each such Notice of Conversion/Continuation shall, within the
restrictions specified above, specify (i) the date of such
continuation or Conversion, (ii) the Advances (or, subject to
Section 2.3 , any portion thereof) to be continued or
Converted, (iii) if such continuation is of, or such
Conversion is into, EURO Rate Advances, whether such EURO Rate
Advance is a Eurodollar Advance or a EURIBOR Rate Advance and the
duration of the Interest Period of each such Advance, and
(iv) in the case of a continuation of or a Conversion into a
EURO Rate Advance, that no Event of Default has occurred and is
continuing. Each Conversion or continuation shall be in a minimum
amount of $2,000,000 or €2,000,000, as applicable, and
multiples of $1,000,000 or €1,000,000, as
applicable.
(b) If upon the expiration of
the then existing Interest Period applicable to any Advance which
is a EURO Rate Advance, the Borrower thereof shall not have
delivered a Notice of Conversion/Continuation in accordance with
this Section 2.5 , then such Advance if it is an
Advance of Dollars shall upon such expiration automatically be
continued as a Eurodollar Rate Advance with an Interest Period of
one month; provided, however, that in the case of a failure to
timely request a continuation of Advances denominated in the
Alternative Currency, such Advances shall be continued as EURIBOR
Rate Advances in the Alternative Currency with an Interest Period
of one month. No Eurodollar Rate Advance may be converted into or
continued as a EURIBOR Rate Advance, but instead must be prepaid in
Dollars and reborrowed in the Alternative Currency, and no EURIBOR
Rate Advance may be converted into or continued as a Eurodollar
Rate Advance, but instead must be prepaid in the Alternative
Currency and reborrowed in Dollars.
(c) After the occurrence of
and during the continuation of an Event of Default, the Borrowers
may not elect to have an Advance be made or continued as, or
Converted into, a EURO Rate Advance after the expiration of any
Interest Period then in effect for that Advance.
2.6 Letters of
Credit .
(a) Subject to the terms and
conditions hereof, at any time and from time to time from the
Closing Date through the date that is thirty (30) days before
the Maturity Date of the applicable Issuing Bank, each Issuing Bank
shall issue such Letters of Credit denominated in Dollars as a
Borrower may request by delivering a Request for Letters of Credit
to such Issuing Bank and to the Administrative Agent;
provided that, giving effect to such Letter of Credit,
(i) the aggregate effective face amounts of all outstanding
Letters of Credit will not exceed $300,000,000, (ii) the sum
of all Advances then outstanding plus the face amount of all
Letters of Credit then outstanding plus the sum of all
unreimbursed drawings under Letters of Credit shall not exceed the
Commitment, and (iii) Total Outstandings will not exceed the
Commitment.
21
Letters of Credit issued under the
Commitment may be issued for terms up to five (5) years from
the date of issuance but in no event shall the term of any such
Letter of Credit extend beyond the Maturity Date applicable to the
Issuing Bank of such Letter of Credit. Each Letter of Credit shall
be in a minimum amount of $500,000, unless otherwise consented to
by the applicable Issuing Bank. The issuance of any Letter of
Credit shall constitute usage of the Commitment. Subject to the
limitations set forth herein, the Borrowers may request Letters of
Credit, reimburse drawings under Letters of Credit and request
further Letters of Credit without premium or penalty.
(b) No Issuing Bank shall
Issue any Letter of Credit if it has received written notice from
the Majority Banks, the Administrative Agent or the Company on or
prior to the Banking Day prior to the requested date of issuance of
such Letter of Credit, that one or more of the applicable
conditions contained in Section 8.2 is not then
satisfied. Each Issuing Bank is under no obligation to Issue any
Letter of Credit if:
(i) any order, judgment or
decree of any Governmental Agency or arbitrator shall by its terms
purport to enjoin or restrain such Issuing Bank from issuing such
Letter of Credit, or any Requirement of Law applicable to such
Issuing Bank or any request or directive (whether or not having the
force of law) from any Governmental Agency with jurisdiction over
such Issuing Bank shall prohibit, or request that such Issuing Bank
refrain from, the issuance of Letters of Credit generally or such
Letter of Credit in particular; or
(ii) any requested Letter of
Credit is not in form reasonably acceptable to such Issuing Bank,
or the issuance of a Letter of Credit shall violate any generally
applicable policies of such Issuing Bank.
(c) Each Request for Letter
of Credit shall be submitted to any Issuing Bank and the
Administrative Agent at least three (3) Banking Days prior to
the date when the issuance of a Letter of Credit is requested. Upon
issuance of a Letter of Credit, the applicable Issuing Bank shall
promptly notify the Banks of the amount and terms thereof. Any
Letter of Credit issued shall conform with the applicable Issuing
Bank’s generally applicable policies regarding form and
substance.
(d) Upon the issuance of a
Letter of Credit, each Bank shall be deemed to have irrevocably
purchased from the Issuing Bank of such Letter of Credit, without
recourse to or warranty from such Issuing Bank, a pro rata
undivided participation in the Letter of Credit, in an amount equal
to that Bank’s Pro Rata Share. Without limiting the scope and
nature of each Bank’s participation in any Letter of Credit,
to the extent that any Issuing Bank has not been reimbursed by the
applicable Borrower, in accordance with Section 2.6(e)
, for any payment made by such Issuing Bank under any Letter of
Credit, each Bank shall reimburse such Issuing Bank promptly upon
demand for the amount of such payment in accordance with its Pro
Rata Share of the Commitment, as the case may be. The obligation of
each Bank to so reimburse each Issuing Bank shall be absolute and
unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation
of the applicable Borrower to reimburse the applicable Issuing Bank
for the amount of any payment made by such Issuing Bank under any
Letter of Credit together with interest as hereinafter provided.
The participation of the Bank in each Letter of
22
Credit shall be automatically adjusted
at each time the Pro Rata Shares are modified in accordance with
Section 2.8, 2.9 or 13.9.
(e) After any drawing on a
Letter of Credit, the applicable Issuing Bank shall notify the
applicable Borrower and the Administrative Agent by telephone or
telecopier of such drawing by 2:00 p.m., New York time, on the date
such payment is to be made and such Borrower shall reimburse such
Issuing Bank, in immediately available funds for any amount paid or
to be paid by such Issuing Bank under such Letter of Credit by 4:00
p.m., New York time on the date of such notice.
(f) If the applicable
Borrower fails to make the payment required by
Section 2.6(e) , the Administrative Agent shall notify
the Banks by telephone (promptly followed in writing) or telecopier
(the method of notification shall be at the Administrative
Agent’s option) of the unreimbursed amount of such payment.
Each Bank irrevocably and unconditionally agrees (irrespective of
the occurrence of an Event of Default or any other circumstance)
that it shall make available to the Administrative Agent (for the
account of the applicable Issuing Bank) an amount equal to its
respective participation in same day funds, at the Administrative
Agent’s Office, not later than the close of business (New
York time) on the date notified by the Administrative Agent. In the
event that any Bank fails to make available to the Administrative
Agent the amount of such Bank’s participation in such Letter
of Credit as provided above, the applicable Issuing Bank (through
the Administrative Agent) shall be entitled to recover such amount
on demand from such Bank together with interest thereon, for each
day from the date of such payment until the date such amount is
paid to such Issuing Bank, at the rate per annum equal to the Base
Rate plus 1%; provided that if such failure is solely
the result of an administrative error (which determination shall be
made by the Administrative Agent in its sole discretion) or is
solely the result of the Bank receiving notice too late in the day
to make payment to the Administrative Agent on that day, then the
interest rate for the first day of such delay shall be the
overnight federal funds rate. Any amount made available by a Bank
to the Administrative Agent as such Bank’s participation in
such Letter of Credit shall constitute a demand loan to the
applicable Borrower bearing interest at a rate per annum equal to
(i) from the date of any payment made by the applicable
Issuing Bank through the date ten days after such payment, the Base
Rate, and (ii) thereafter, the Base Rate plus 2%;
provided , that if a Bank is prevented from making such
demand loans by the provisions of the United States Bankruptcy Code
or otherwise, the amount so paid to such Issuing Bank by such Bank
shall constitute a funding and purchase by it of a participation in
such Letter of Credit disbursement by such Issuing Bank and all
obligations of the applicable Borrower with respect thereto,
including interest thereon to the extent accruing from the date of
such purchase. The Administrative Agent shall promptly pay to the
applicable Issuing Bank all funds paid by the Banks to reimburse
such Issuing Bank for the payment made by it under the Letter of
Credit.
(g) The issuance of any
supplement, modification, amendment, renewal, or extension to or of
any Letter of Credit shall be treated for the purposes of
Article 8 the same as the issuance of a new Letter of
Credit.
(h) If, for any reason, a
Bank fails to pay its liability on a Letter of Credit in accordance
with the provisions of Section 2.6(f) , then the
applicable Issuing Bank shall be automatically subrogated to the
right of such defaulting Bank to any prepayment, in full, of
any
23
loan created by virtue of a drawing on
such Letter of Credit, or such defaulting Bank’s right to any
reimbursement by the Borrowers with respect to any drawing, or any
other right of such defaulting Bank in connection with or resulting
from the drawing on such Letter of Credit, prior to distribution of
any payments hereunder to the defaulting Bank.
(i) The obligation of the
Borrowers to reimburse each Issuing Bank for the amount of any
payment made by such Issuing Bank under any Letter of Credit issued
by it, and the obligations of the Banks under their respective
participations under the Letters of Credit, shall be absolute,
unconditional, and irrevocable and shall not be affected by any of
the following circumstances:
(i) any lack of validity or
enforceability of the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(ii) any amendment or waiver
of or any consent to departure from the Letter of Credit, this
Agreement, or any other agreement or instrument relating
thereto;
(iii) the existence of any
claim, setoff, defense, or other rights which any Borrower may have
at any time against any Bank, any beneficiary of the Letter of
Credit (or any persons or entities for whom any such beneficiary
may be acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement,
or any other document presented under the Letter of Credit proving
to be forged, fraudulent, invalid, or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply with the
terms of the Letter of Credit;
(v) the solvency or financial
responsibility of any party issuing any documents in connection
with a Letter of Credit;
(vi) any failure or delay in
notice of shipments or arrival of any property;
(vii) any error in the
transmission of any message relating to a Letter of Credit not
caused by such Issuing Bank, or any delay or interruption in any
such message;
(viii) any error, neglect or
default of any correspondent of any Bank in connection with a
Letter of Credit;
(ix) any consequence arising
from acts of God, war, insurrection, disturbances, labor disputes,
emergency conditions or other causes beyond the control of such
Issuing Bank;
(x) so long as such Issuing
Bank in good faith determines that the draft, contract or document
appears to comply with the terms of the Letter of Credit,
the
24
form, accuracy, genuineness
or legal effect of any contract or document referred to in any
document submitted to such Issuing Bank in connection with a Letter
of Credit; and
(xi) where such Issuing Bank
has acted in good faith and without gross negligence or willful
misconduct and observed general banking usage, any other
circumstance whatsoever.
(j) each Issuing Bank shall
be entitled to the protection accorded to the Administrative Agent
pursuant to Section 10.6 , mutatis mutandis
.
(k) As between any Borrower
and each Issuing Bank, such Borrower assumes all risks of the acts
and omissions of, or misuse of any Letter of Credit by, the
respective beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, no Issuing Bank shall be
responsible: (1) for the validity, genuineness or legal effect
of any document submitted by any party in connection with the
issuance of or any drawing under the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid,
fraudulent or forged; (2) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer
or assign any Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (3) for errors in
interpretation of technical terms; (4) for the misapplication
by the beneficiary of any Letter of Credit of the proceeds of any
drawing under such Letter of Credit; provided that none of the
events set forth in the foregoing clauses (1) through
(4) shall have been caused by the gross negligence or willful
misconduct of such Issuing Bank; and (5) for any consequences
arising from causes beyond the control of such Issuing Bank. None
of the above shall affect, impair, or prevent the vesting of any of
such Issuing Bank’s rights or powers hereunder. In
furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by an
Issuing Bank under or in connection with the Letters of Credit, if
taken or omitted in good faith, without gross negligence or willful
misconduct, shall not put such Issuing Bank under any resulting
liability to the Borrowers or the Banks.
(l) No Issuing Bank shall
have any obligation whatsoever to make any factual or legal
determinations as to the correctness of any demand or payment under
any Letter of Credit strictly complying with the terms of such
Letter of Credit before such Issuing Bank makes any payment under
the Letter of Credit. The Borrowers and the Banks hereby waive
(A) diligence, presentment, demand, protest or notice of any
kind, (B) any requirement that the applicable Issuing Bank
exhaust any right or remedy against the Borrowers, the
Administrative Agent, any other participant in the credit, or any
other Person, and (C) any claim or defense based on any time
or other indulgence granted to any Borrower, the Administrative
Agent or any other Person and any right of subrogation to any
rights or remedies of such Issuing Bank in respect of any of the
Letters of Credit or any defense that such Issuing Bank has
impaired any such right of subrogation.
(m) In the event that any
payment made by or on behalf of any Borrower pursuant to or in
connection with any Letter of Credit is rescinded or must otherwise
be restored or returned to such Borrower or other relevant party,
as applicable, including as a result of any insolvency, bankruptcy
or reorganization or similar proceedings in respect of such
Borrower, the
25
obligations of the Banks under this
Section 2.6(m) in respect of such rescinded, restored
or returned payment shall be reinstated in full and the Banks shall
be liable to indemnify the applicable Issuing Bank hereunder as
fully as if such payment had never been made. The provision of this
Section 2.6(m) shall survive the payment of the
obligations of the Borrowers under the Letters of
Credit.
(n) All amounts to be paid to
any Issuing Bank by the Banks under this Agreement shall be paid by
the Banks to the Administrative Agent for the account of such
Issuing Bank, without any set-off or counterclaim whatsoever and
free and clear of any without deduction for or on account of any
taxes, duties or other charges whatsoever, and without any
liability therefor.
2.7
Administrative Agent’s Right to Assume Funds Available
for Advances . Unless the Administrative Agent shall have
been notified by any Bank no later than the time of the funding by
the Administrative Agent of any Loan that such Bank does not intend
to make available to the Administrative Agent such Bank’s Pro
Rata Share of the total amount of such Loan, the Administrative
Agent may assume that such Bank has made such amount available to
the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If the
Administrative Agent has made funds available to any Borrower based
on such assumptions and such corresponding amount is not in fact
made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank, which demand shall
be made in a reasonably prompt manner. If such Bank does not pay
such corresponding amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent promptly
shall notify the applicable Borrower and such Borrower shall pay
such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such
Bank interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to such Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to the average overnight federal funds rate.
Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its Pro Rata Share of the Commitment or to
prejudice any rights that the Administrative Agent or any Borrower
may have against any Bank as a result of any default by such Bank
hereunder.
2.8 Increased
Commitments; Additional Banks .
(a) On a single occasion
during each year subsequent to the Closing Date, the Company may,
upon at least thirty (30) days’ notice to the
Administrative Agent (which shall promptly provide a copy of such
notice to the Banks), propose to increase the amount of the
Commitments in an aggregate minimum amount of $10,000,000 and an
aggregate maximum amount not to exceed $500,000,000 (the amount of
any such increase, the “ Increased Commitments
”) provided that (i) at the time of and immediately
after giving effect to such Increased Commitments, the Company
maintains at least a Level 4 and (ii) the conditions set forth
in Section 2.8(c) are satisfied. Each Bank party to this
Agreement at such time shall have the right (but no obligation),
for a period of fifteen (15) days following receipt of such
notice, to elect by notice to the Company and the Administrative
Agent to increase its Commitment by a
26
principal amount which bears the same
ratio to the Increased Commitments as its then Commitment bears to
the aggregate Commitments then existing.
(b) If any Bank party to this
Agreement shall not elect to increase its Commitment pursuant to
subsection (a) of this Section, the Company may designate
another bank or other banks (which may be, but need not be, one or
more of the existing Banks, but which shall be an Eligible
Assignee), which at the time agree to (i) in the case of any
such Bank that is an existing Bank, increase its Commitment and
(ii) in the case of any other such Bank (an “
Additional Bank ”), become a party to this
Agreement, provided that the Commitment of each Additional
Bank equals or exceeds $10,000,000. The sum of the increases in the
Commitments of the existing Banks pursuant to this
subsection (b) plus the Commitments of the Additional Banks
shall not in the aggregate exceed the unsubscribed amount of the
Increased Commitments.
(c) An increase in the
aggregate amount of the Commitments pursuant to this
Section 2.8 shall become effective on the date (the “
Increase Date ”) on which the Administrative
Agent receives an agreement in form and substance satisfactory to
the Administrative Agent signed by the Company, by each Additional
Bank and by each other Bank whose Commitment is to be increased,
setting forth the new Commitments of such Banks and setting forth
the agreement of each Additional Bank to become a party to this
Agreement and to be bound by all the terms and provisions hereof,
together with (x) a certificate dated as of the Increase Date
(i) certifying and attaching the resolutions adopted by the
Company approving or consenting to such extension and
(ii) certifying that, before and after giving effect to such
extension, (A) the representations and warranties contained in
Article 4 are true and correct in all material respects on
and as of the Increase Date, except to the extent that such
representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material
respects as of such earlier date, and except that for purposes of
this Section 2.8 , the representations and warranties
contained in Sections 4.5, 4.6 and 4.8 shall be deemed to
refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of
Section 7.1 , and (B) no Default exists, and
(y) such opinions of counsel for the Company with respect to
the Increased Commitments as the Administrative Agent may
reasonably request.
2.9 Extension of
Maturity Date .
(a) Requests for
Extension . The Company may, by notice to the Administrative
Agent (who shall promptly notify the Banks in writing) not earlier
than 60 days and not later than 45 days prior to any anniversary of
the Closing Date (each, an “ Extension Date
”), request that each Bank extend such Bank’s Maturity
Date for an additional one year from the Maturity Date applicable
to such Bank, provided that the Company shall not request more than
two extensions of the Maturity Date hereunder.
(b) Bank Elections to
Extend . Each Bank, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not
later than the date (the “ Notice Date ”)
that is 20 days prior to such Extension Date, advise the
Administrative Agent whether or not such Bank agrees to such
extension (and each Bank that determines not to so extend its
Maturity Date (a “ Non Extending Bank ”)
shall notify the Administrative Agent of such fact promptly after
such determination (but in any event no later than the Notice Date)
and any Bank that does not so advise the Administrative Agent on or
before the Notice Date shall be deemed to
27
be a Non Extending Bank. The election of
any Bank to agree to such extension shall not obligate any other
Bank to so agree.
(c) Notification by
Administrative Agent . The Administrative Agent shall notify
the Company of each Bank’s determination under this Section
no later than the date 15 days prior to the applicable Extension
Date (or, if such date is not a Business Day, on the next preceding
Business Day).
(d) Additional Commitment
Banks . The Company shall have the right to replace each Non
Extending Bank with, another bank or other banks (which may be, but
need not be, one or more of the existing Banks, but which shall be
an Eligible Assignee), which at the time agree to (i) in the
case of any such Bank that is an existing Bank, increase its
Commitment and (ii) in the case of any other such Bank, become
a party to this Agreement (each, an “ Additional
Commitment Bank ”) as provided in
Section 13.9 ; provided that each of such
Additional Commitment Banks shall enter into an Assignment
Agreement pursuant to which such Additional Commitment Bank shall,
effective as of the applicable Extension Date, undertake a
Commitment (and, if any such Additional Commitment Bank is already
a Bank, its Commitment shall be in addition to such Bank’s
Commitment hereunder on such date).
(e) Minimum Extension
Requirement . If (and only if) the total of the Commitments of
the Banks that have agreed so to extend their Maturity Date (each,
an “ Extending Bank ”) and the additional
Commitments of the Additional Commitment Banks shall be more than
50% of the aggregate amount of the Commitments in effect
immediately prior to the Extension Date, then, effective as of the
Extension Date, the Maturity Date of each Extending Bank and of
each Additional Commitment Bank shall be extended to the date
falling one year after the Maturity Date then applicable to such
Bank (except that, if such date is not a Business Day, such
Maturity Date as so extended shall be the next preceding Business
Day) and each Additional Commitment Bank shall thereupon become a
“ Bank ” for all purposes of this
Agreement.
(f) Conditions to
Effectiveness of Extensions . As a condition precedent to such
extension, the Company shall deliver to the Administrative Agent a
certificate dated as of the Extension Date (i) certifying and
attaching the resolutions adopted by the Company approving or
consenting to such extension and (ii) certifying that, before
and after giving effect to such extension, (A) the
representations and warranties contained in Article 4 are
true and correct in all material respects on and as of the
Extension Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case
they are true and correct in all material respects as of such
earlier date, and except that for purposes of this
Section 2.9 , the representations and warranties
contained in Sections 4.5, 4.6 and 4.8 shall be deemed to
refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of
Section 7.1 , and (B) no Default exists. In
addition, on the Maturity Date of each Non Extending Bank, the
Company shall repay all Loans owing to such Non Extending Bank and
outstanding on such date (and pay any additional amounts required
pursuant to Section 3.8(c) ) to the extent necessary to
keep outstanding Loans ratable with any revised Pro-Rata Shares of
the respective Banks effective as of such date.
28
ARTICLE 3
PAYMENTS AND
FEES
3.1 Principal and
Interest .
(a) Interest shall be payable
on the outstanding daily unpaid principal amount of each Loan from
the date thereof until payment in full is made and shall accrue and
be payable at the rates set forth herein before and after default,
before and after maturity, before and after judgment, and before
and after the commencement of any proceeding under any Debtor
Relief Law, with interest on overdue interest to bear interest at
the Default Rate to the fullest extent permitted by applicable
Laws.
(b) Interest accrued on each
Base Rate Advance shall be payable quarterly in arrears on the last
day of each March, June, September and December commencing on the
first such date to occur after the Closing Date. Except as
otherwise provided in Section 3.9 , the unpaid
principal amount of any Base Rate Advance shall bear interest at a
fluctuating rate per annum equal to the Base Rate. Each change in
the interest rate hereunder shall take effect simultaneously with
the corresponding change in the Base Rate. Each change in the Base
Rate shall be effective as of 12:01 a.m., New York time, on the
Banking Day on which the change in the Base Rate is announced,
unless otherwise specified in such announcement, in which case the
change shall be effective as so specified.
(c) Interest accrued on each
EURO Rate Advance, the Interest Period for which is three months or
less, shall be due and payable on the last day of the applicable
Interest Period. Interest accrued on each other EURO Rate Advance
shall be due and payable on every three month anniversary of the
date which is three months after the date such EURO Rate Advance
was made, converted or continued pursuant to
Section 2.5 and on the last day of the Interest Period.
Except as otherwise provided in Section 3.9 ,
(i) the unpaid principal amount of any Eurodollar Rate Advance
shall bear interest at a rate per annum equal to the Eurodollar
Rate for that Eurodollar Rate Advance plus the weighted
average of the Daily Margin for each day during the applicable
period and (ii) the unpaid principal amount of any EURIBOR
Rate Advance shall bear interest at a rate per annum equal to the
EURIBOR Rate for that EURIBOR Rate Advance plus the weighted
average of the Daily Margin for each day during the applicable
period.
(d) If not sooner paid, the
principal amount of each Advance shall be payable to each Bank on
the Maturity Date applicable to such Bank.
(e) If the Administrative
Agent notifies the Company at any time that the Dollar Equivalent
of the Total Outstandings exceeds the Commitment, by reason of
fluctuations in exchange rates or otherwise, the Borrowers shall,
within two Business Days after receipt of such notice, prepay Loans
in an aggregate amount sufficient to reduce the Dollar Equivalent
thereof as of the date of such payment to an amount not to exceed
the Commitment then in effect.
(f) The Loans may, at any
time and from time to time, voluntarily be paid or prepaid in whole
or in part without premium or penalty, except that with
respect to any voluntary prepayment under this subsection,
(i) any partial prepayment shall be in minimum amount of
$2,000,000 and €2,000,000 and multiples of $1,000,000 and
€1,000,000, as applicable, in excess
29
thereof, (ii) the Administrative
Agent shall have received written notice of any prepayment by
(x) 11:00 a.m. (New York time) on the date of prepayment
(which shall be a Banking Day), in the case of a Base Rate Advance,
(y) by 1:00 p.m. (New York time) three (3) Banking Days
before the date of prepayment, in the case of a Eurodollar Rate
Advance, and (z) by 9:30 a.m. (London time) three
(3) Banking Days before the date of prepayment, in the case of
a EURIBOR Rate Advance, which notice shall identify the date and
amount of the prepayment and the Loan(s) being prepaid,
(iii) each prepayment of principal shall be accompanied by
payment of interest accrued through the date of payment on the
amount of principal paid and (iv) in any event, any payment or
prepayment of all or any part of any EURO Rate Advance on a day
other than the last day of the applicable Interest Period shall be
subject to Section 3.8(c) .
3.2 Facility
Fee . The Company agrees to pay to the Administrative Agent
for the account of each Bank a facility fee on such Bank’s
daily average Commitment, whether used or unused, from the Closing
Date in the case of each Bank and from the effective date specified
in the Assignment Agreement pursuant to which it became a Bank in
the case of each other Bank until the Maturity Date applicable to
such Bank, payable quarterly in arrears on the last day of each
March, June, September and December, commencing on
December 31, 2007, in an amount equal to the product of
(i) such Bank’s daily average Commitment, whether such
Commitment is used or unused, in effect during the period for which
such payment that is to be made times (ii) the weighted
average rate per annum that is derived from the following rates:
(a) a rate of 0.04% per annum with respect to each day
during such period that the ratings with respect to Long-Term Debt
were at Level 1, (b) a rate of 0.045% per annum with
respect to each day during such period that such ratings were at
Level 2, (c) a rate of 0.05% per annum with respect to
each day during such period that such ratings were at Level 3,
(d) a rate of 0.06% per annum with respect to each day
during such period that such ratings were at Level 4, (e) a
rate of 0.08% per annum with respect to each day during such
period that such ratings were at Level 5 and (f) a rate of
0.10% per annum with respect to each day during such period
that such ratings were at Level 6. If any change in the rating
established by S&P or Moody’s with respect to Long-Term
Debt shall result in a change in the Level, the change in the
facility fee shall be effective as of the date on which such rating
change is publicly announced. If the ratings established by S&P
or Moody’s with respect to Long-Term Debt are unavailable for
any reason for any day, then the applicable Level for purposes of
calculating the facility fee for such day shall be deemed to be
Level 6 (or, if the Majority Banks consent in writing, such other
Level as may be reasonably determined by the Majority Banks from a
rating with respect to Long-Term Debt for such day established by
another rating agency reasonably acceptable to the Majority
Banks).
3.3 Arranger
Fees and Agency Fees . On the Closing Date, the Company
shall pay to the Arrangers fees in the amounts agreed upon by a
letter agreement dated October 5, 2007 among the Company and
the Arrangers. Such fees are for the sole account of the Arrangers
and are fully earned upon receipt and non-refundable. The Company
shall pay to the Administrative Agent, agency fees in the amounts
agreed upon by letter agreements dated October 5, 2007 between
the Company and Citigroup Global Markets Inc. Such agency fees
shall be payable quarterly in advance as set forth in such letter
agreements. The agency fees are for the sole account of the
Administrative Agent and are fully earned upon receipt and
non-refundable; provided , however that in the event
the facilities hereunder are terminated, the agency fees deemed
earned shall be pro rated over the number of days from the last
quarterly date on which the agency fees were paid to the
termination date of the facilities.
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3.4 LC Issuance
Fee . The Company shall pay, on the last day of each Fiscal
Quarter, a LC Issuance Fee to the Administrative Agent for the
account of each Issuing Bank, in the amounts agreed upon in writing
between the Company and such Issuing Bank. The LC Issuance Fees are
for the sole account of the applicable Issuing Bank and are fully
earned upon receipt and non-refundable.
3.5 LC
Reimbursement Fee . The Company shall pay, on the last day
of each Fiscal Quarter, a LC Reimbursement Fee to the
Administrative Agent, for the pro rata benefit of the Banks in
accordance with their respective Pro Rata Shares of the Commitment,
in an amount equal to the average daily face amount of Letters of
Credit outstanding during such Fiscal Quarter times the
weighted average of the Daily Margin for EURO Rate Advances (as if
the Utilization Ratio were greater than 0.50:1.00) for each day
during such period.
3.6 LC Drawing
Fee . The Company shall pay a drawing fee to each Issuing
Bank in the amount of $250 for each drawing under any Letters of
Credit issued by it, payable on the date of such drawing or
promptly upon notice to the Company of the draw under any Letter of
Credit.
3.7 Capital
Adequacy . If any Bank (including an Issuing Bank)
determines in good faith that compliance with any Law or regulation
or with any guideline or request (excluding any published as of the
date hereof or currently scheduled to take effect) from any central
bank or other Governmental Agency (whether or not having the force
of Law), in each case adopted or effective after the date hereof
has or would have the effect of reducing the rate of return on the
capital of such Bank or any corporation controlling such Bank as a
consequence of, or with reference to, such Bank’s Pro Rata
Share of any portion of the Commitment or its making or maintaining
of Advances, or its issuance of any Letter of Credit, below the
rate which such Bank or such other corporation could have achieved
but for such compliance (taking into account the policies of such
Bank or corporation with regard to capital), then the Company shall
from time to time, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), immediately pay to such Bank
additional amounts sufficient to compensate such Bank or other
corporation for such reduction. A certificate as to such amounts,
setting forth in reasonable detail the basis for such calculations,
submitted to the Company and the Administrative Agent by such Bank,
shall be conclusive and binding for all purposes, absent manifest
error. Each Bank agrees promptly to notify the Company and the
Administrative Agent of any circumstances that would cause the
Company to pay additional amounts pursuant to this
Section 3.7 . If any Bank shall have been compensated
pursuant to this Section 3.7 , the Company shall have
the right, upon 30 days prior notice to the Administrative Agent,
with the assistance (but not the obligation) of the Administrative
Agent, to seek a substitute bank or banks (which may be one or more
of the Banks) satisfactory to the Company, the Administrative Agent
and each Issuing Bank to assume the Commitment of such Bank and to
purchase the Notes of such Bank and all amounts owing to such Bank
in respect of Advances and Letters of Credit under this Agreement
pursuant to Section 13.9 .
3.8 Increased Costs
.
(a) If, after the date
hereof, by reason of (i) the adoption of any Law by any
Governmental Agency, central branch or comparable authority with
respect to activities in the
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Eurocurrency Market, or (ii) any
change in the interpretation or administration of any existing Law
by any Governmental Agency, central bank or comparable authority
charged with the interpretation or administration thereof, or
(iii) compliance by any Bank or its Eurocurrency Lending
Office or any Issuing Bank with any request or directive (whether
or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority, or (iv) the existence or
occurrence of circumstances affecting the Eurocurrency Market
generally that are beyond the reasonable control of the
Banks:
(1) (A) any reserve (
including , without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), special deposit
or similar requirements shall be imposed, modified or deemed
applicable against assets of, deposits with or for the account of,
or credit extended by, any Bank or its Eurocurrency Lending Office
or any Issuing Bank; or
(B) any Bank or its
Eurocurrency Lending Office or the Eurocurrency Market or any
Issuing Bank shall have imposed on it any other condition affecting
any Advance, any of its Notes, its obligation to make Advances or
this Agreement, or its obligation to make or maintain Letters of
Credit hereunder, or any of the same shall otherwise be adversely
affected;
and the result of any of the
foregoing, as determined by such Bank, increases the cost to such
Bank or its Eurocurrency Lending Office of making or maintaining
any Advance or in respect of any Advance, any of its Notes or its
obligation to make Advances or the issuance or maintenance of any
Letter of Credit or reduces the amount of any sum received or
receivable by such Bank or its Eurocurrency Lending Office with
respect to any Advance, any of its Notes or its obligation to make
Advances (assuming such Bank’s Eurocurrency Lending Office
had funded 100% of its EURO Rate Advance in the Eurocurrency
Market) or in respect of Letters of Credit or its participation
therein, then, upon demand by such Bank or such Issuing Bank (with
a copy to the Administrative Agent), the Company shall pay to such
Bank or such Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Bank or such Issuing
Bank, as the case may be, for such increased cost or reduction. A
statement of any Bank or such Issuing Bank claiming compensation
under this subsection and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. Each Bank and each Issuing Bank agree to
endeavor promptly to notify the Company of any event of which it
has actual knowledge (and, in any event, within 90 days from the
date on which it obtained such knowledge), occurring after the
Closing Date, which will entitle such Bank or such Issuing Bank to
compensation pursuant to this Section, and agrees to designate a
different Eurocurrency Lending Office if such designation will
avoid the need for or reduce the amount of such compensation and
will not, in the judgment of such Bank or such Issuing Bank,
otherwise be disadvantageous to such Bank or such Issuing Bank. If
any Bank claims compensation under this Section, the Company may at
any time, upon at least four (4) Banking Days’ prior
notice to the Administrative Agent and Banks and upon payment in
full of the amounts provided for in this Section through the date
of such payment plus any fee required by Section 3.8(c)
, pay in full all Advances or request that all EURO Rate Advances
be converted to Base Rate Advances or all Base Rate Advances be
converted
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to EURO Rate Advances. If any
Bank shall have been compensated pursuant to this
Section 3.8(a) , the Company shall have the right, upon
30 days prior notice to the Administrative Agent, with the
assistance (but not the obligation) of the Administrative Agent, to
seek a substitute bank or banks (which may be one or more of the
Banks) satisfactory to the Company, the Administrative Agent and
each Issuing Bank to assume the Commitment of such Bank and to
purchase the Notes of such Bank and all amounts owing to such Bank
in respect of Advances and Letters of Credit under this Agreement
pursuant to Section 13.9 .
(2) If any Bank shall have
reasonably determined that it shall be unlawful for such Bank or
its Eurocurrency Lending Office to make, maintain or fund its
portion of any EURO Rate Advance, or the authority of such Bank to
purchase or sell, or to take deposits of, Dollars or Euros in the
Eurocurrency Market, or to determine or charge interest rates based
upon the Eurodollar Rate or EURIBOR Rate has become unlawful, then
such Bank shall so notify the Administrative Agent and the other
Banks, and such Bank’s obligation to make EURO Rate Advances
shall be suspended for the duration of such illegality and the
Administrative Agent forthwith shall give notice thereof to the
Company and such Bank shall make a Base Rate Advance as part of any
successive EURO Rate Advance. Upon receipt of such notice, the
outstanding principal amount of all EURO Rate Advances made by such
Bank, together with accrued interest thereon, automatically shall
be converted to Base Rate Advances with Interest Periods
corresponding to the EURO Rate Advances of which such EURO Rate
Advances were a part and, if, on the date of any such conversion,
any such EURO Rate Advance is an Alternative Currency Loan, it
shall be redenominated into a Dollar Loan in a principal amount
equal to the Dollar Equivalent of the amount of such Alternative
Currency Loan on either (A) the last day of the Interest
Period(s) applicable to such EURO Rate Advances if the affected
Bank may lawfully continue to maintain and fund such EURO Rate
Advances to such day(s) or (B) immediately if the affected
Bank may not lawfully continue to fund and maintain such EURO Rate
Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a fee under
Section 3.8(c) .
(b) If, with respect to any
proposed EURO Rate Advance:
(i) the Reference Banks
reasonably determine that, by reason of circumstances affecting the
Eurocurrency Market generally that are beyond the reasonable
control of the Banks, deposits in Dollars or Euros (in the
applicable amounts) are not being offered to each of the Banks in
the Eurocurrency Market for the applicable Interest Period;
or
(ii) the Reference Banks
advise the Administrative Agent that the Eurodollar Rate or EURIBOR
Rate, as the case may be, as determined by the Administrative Agent
(1) does not represent the effective pricing to such Banks for
deposits in Dollars or Euros, as the case may be, in the
Eurocurrency Market in the relevant amount for the applicable
Interest Period, or (2) will not adequately and fairly reflect
the cost to such Banks of making the applicable EURO Rate
Advances;
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then the Administrative Agent
forthwith shall give notice thereof to the Company and the Banks,
whereupon until the Administrative Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist,
the obligation of the Banks to make any future EURO Rate Advances
shall be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a EURO Rate
Adv
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