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EXHIBIT 10.2
CREDIT AGREEMENT
DATED AS OF AUGUST 29, 2008
AMONG
MGE ENERGY, INC.,
THE LENDERS
and
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT,
J.P. MORGAN SECURITIES INC.
LEAD ARRANGER AND SOLE BOOK RUNNER
ARTICLE I
DEFINITIONS; ETC.
1
1.1.
Definitions
1
1.2.
Interpretation
9
THE CREDITS
9
2.1.
The Facility
9
2.2.
Advances
10
2.3.
Method of Borrowing
11
2.4.
Commitment Fee; Reductions in Aggregate Commitment
11
2.5.
Minimum Amount of Each Advance
11
2.6.
Optional Principal Payments
11
2.7.
Changes in Interest Rate, etc
12
2.8.
Rates Applicable After Default
12
2.9.
Method of Payment
12
2.10.
Noteless Agreement; Evidence of Indebtedness
13
2.11.
Telephonic Notices
13
2.12.
Interest Payment Dates; Interest and Fee Basis
13
2.13.
Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions 14
2.14.
Lending Installations
14
2.15.
Non-Receipt of Funds by the Administrative Agent
14
2.16.
Extension of Facility Termination Date
14
ARTICLE III
YIELD PROTECTION; TAXES
15
3.1.
Yield Protection
15
3.2.
Changes in Capital Adequacy Regulations
16
3.3.
Availability of Types of Advances
17
3.4.
Funding Indemnification
17
3.5.
Taxes
17
3.6.
Lender Statements; Survival of Indemnity
19
3.7.
Substitution of Affected Lender
19
ARTICLE IV
CONDITIONS PRECEDENT
20
4.1.
Initial Loan
20
4.2.
Each Loan
20
ARTICLE V
REPRESENTATIONS AND WARRANTIES
21
5.1.
Existence and Standing
21
5.2.
Authorization and Validity
21
5.3.
No Conflict; Government Consent
21
5.4.
Financial Statements
22
5.5.
Material Adverse Change
22
5.6.
Taxes
22
5.7.
Litigation and Contingent Obligations
22
5.8.
Subsidiaries
23
5.9.
ERISA
23
5.10.
Accuracy of Information
23
5.11.
Regulation U
23
5.12.
Compliance With Laws
23
5.13.
Ownership of Properties
23
5.14.
Plan Assets; Prohibited Transactions
23
5.15.
Environmental Matters
24
5.16.
Investment Company Act
24
5.17.
Insurance
24
5.18.
Regulatory Approval
24
ARTICLE VI
COVENANTS
24
6.1.
Financial Reporting
24
6.2.
Litigation
25
6.3.
Use of Proceeds
26
6.4.
Notice of Default
26
6.5.
Conduct of Business
26
6.6.
Taxes
26
6.7.
Insurance
26
6.8.
Compliance with Laws
26
6.9.
Maintenance of Properties
26
6.10.
Inspection
27
6.11.
Merger
27
6.12.
Sale of Assets
27
6.13.
Liens
27
6.14.
Affiliates
29
6.15.
Financial Covenant
30
ARTICLE VII
DEFAULTS
30
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
32
8.1.
Acceleration
32
8.2.
Amendments
32
8.3.
Preservation of Rights
32
ARTICLE IX
GENERAL PROVISIONS
33
9.1.
Survival of Representations
33
9.2.
Governmental Regulation
33
9.3.
Headings
33
9.4.
Entire Agreement
33
9.5.
Several Obligations; Benefits of this Agreement
33
9.6.
Expenses; Indemnification
33
9.7.
Numbers of Documents
34
9.8.
Accounting
34
9.9.
Severability of Provisions
35
9.10.
Nonliability of Lenders
35
9.11.
Confidentiality
35
9.12.
Nonreliance
35
9.13.
Disclosure
35
9.14.
USA PATRIOT ACT NOTIFICATION
36
ARTICLE X
THE ADMINISTRATIVE AGENT
36
10.1.
Appointment; Nature of Relationship
36
10.2.
Powers
36
10.3.
General Immunity
36
10.4.
No Responsibility for Loans, Recitals, etc
37
10.5.
Action on Instructions of Lenders
37
10.6.
Employment of Administrative Agents and Counsel
37
10.7.
Reliance on Documents; Counsel
37
10.8.
Administrative Agent’s Reimbursement and
Indemnification
38
10.9.
Notice of Default
38
10.10.
Rights as a Lender
38
10.11.
Lender Credit Decision
39
10.12.
Successor Administrative Agent
39
10.13.
Administrative Agent and Arranger Fees
40
10.14.
Delegation to Affiliates
40
ARTICLE XI
SETOFF; RATABLE PAYMENTS
40
11.1.
Setoff
40
11.2.
Ratable Payments
40
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
40
12.1.
Successors and Assigns
40
12.2.
Participations
41
12.3.
Assignments
42
12.4.
Dissemination of Information
43
12.5.
Tax Treatment
43
ARTICLE XIII
NOTICES
43
13.1.
Notices
43
13.2.
Electronic Communications
43
13.3.
Change of Address
44
ARTICLE XIV
COUNTERPARTS; EFFECTIVENESS
44
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
44
15.1.
CHOICE OF LAW
44
15.2.
WAIVER OF JURY TRIAL
44
SCHEDULES
Schedule I
Lenders and Commitments
Schedule II
Pricing Schedule
Schedule 5.8
Subsidiaries
Schedule 6.13
Liens
EXHIBITS
Exhibit A
Form of Opinion of Borrower’s Counsel
Exhibit B
Form of Compliance Certificate
Exhibit C
Form of Assignment
Exhibit D
Form of Note
CREDIT AGREEMENT
This Agreement, dated as of August 29, 2008, is
among MGE Energy, Inc., the Lenders and JPMorgan Chase Bank, N.A.,
a national banking association, as Administrative Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; ETC.
1.1. Definitions . As used
in this Agreement:
"Administrative Agent" means JPMCB in its
capacity as contractual representative of the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to Article X.
"Advance" means a borrowing hereunder (i) made
by the Borrower from the Lenders on the same Borrowing Date, or
(ii) converted or continued by the Lenders on the same date of
conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the
case of Eurodollar Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by or under common
control with such Person.
"Aggregate Commitment" means the aggregate
of the Commitments of all the Lenders, in the initial aggregate
amount of $20,000,000 as reduced from time to time pursuant to the
terms hereof.
"Agreement" means this credit agreement, as it
may be amended or modified and in effect from time to time.
"Agreement Accounting Principles" means
generally accepted accounting principles as in effect from time to
time, applied in a manner consistent with that used in preparing
the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate
of interest per annum equal to the higher of (i) the Prime Rate for
such day and (ii) the sum of the Federal Funds Effective Rate for
such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the
percentage rate per annum at which commitment fees are accruing on
the Aggregate Commitment at such time as set forth in the Pricing
Schedule.
"Applicable Margin" means, at any time, the
percentage rate per annum applicable to Eurodollar Advances at such
time as set forth in the Pricing Schedule.
"Arranger" means J.P. Morgan Securities Inc., a
Delaware corporation, and its successors, in its capacity as Lead
Arranger and Sole Book Runner.
"Authorized Officer" means any of the Chairman,
President, Chief Financial Officer, Treasurer or an Assistant
Treasurer of the Borrower, acting singly.
"Bankruptcy Code" means the Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. §101 et seq.).
"Borrower" means MGE Energy, Inc., a Wisconsin
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an
Advance is made hereunder.
"Borrowing Notice" is defined in Section
2.2.3.
"Business Day" means (i) with respect to any
borrowing, payment or rate selection of Eurodollar Advances, a day
(other than a Saturday or Sunday) on which banks generally are open
in Chicago and New York for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can
be made on the Fedwire system and dealings in United States dollars
are carried on in the London interbank market and (ii) for all
other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago for the conduct of
substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease
of Property by such Person as lessee which would be capitalized on
a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person
means the amount of the obligations of such Person under
Capitalized Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Cash Equivalent Investments" means (i)
short-term obligations of, or fully guaranteed by, the United
States of America, (ii) commercial paper rated A-1 or better by
S&P or P-1 or better by Moody’s, (iii) demand deposit
accounts maintained in the ordinary course of business, and (iv)
certificates of deposit issued by and time deposits with commercial
banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000; provided in each case that the same
provides for payment of both principal and interest (and not
principal alone or interest alone) and is not subject to any
contingency regarding the payment of principal or interest.
"CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from
time to time.
"CERCLIS" means the Comprehensive Environmental
Response Compensation Liability Information System List, as amended
from time to time.
"Change in Control" means (i) that the Borrower
shall own less than 100% of the voting equity interests of Madison
Gas or (ii) the acquisition by any Person, or two or more Persons
acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 30% or more of the outstanding
shares of voting stock of the Borrower.
"Code" means the Internal Revenue Code of 1986,
as amended, reformed or otherwise modified from time to time.
"Commitment" means, for each Lender, the
obligation of such Lender to make Loans in an aggregate not
exceeding the amount set forth on Schedule I hereto or as set forth
in any assignment agreement relating to any assignment that has
become effective pursuant to Section 12.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.
"Consolidated Indebtedness" means at any time
the Indebtedness of the Borrower and its Subsidiaries calculated on
a consolidated basis as of such time.
"Consolidated Net Worth" means at any time the
consolidated stockholders’ equity of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Total Capitalization" means at any
time the sum of Consolidated Indebtedness and Consolidated Net
Worth, each calculated at such time.
"Contingent Obligation" of a Person means any
agreement, undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently
liable upon, the Indebtedness of any other Person, or agrees to
maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including any comfort letter,
operating agreement, take-or-pay contract or the obligations of any
such Person as general partner of a partnership with respect to the
liabilities of the partnership.
"Controlled Group" means all members of a
controlled group of corporations or other business entities and all
members of a controlled group of trades or businesses (whether or
not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414
of the Code or Section 4001 of ERISA.
"Conversion/Continuation Notice" is defined in
Section 2.2.4.
"Default" means an event described in Article
VII.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans,
injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment
on human health, (iii) emissions, discharges or releases of
pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any rule or
regulation issued thereunder.
"Eurodollar Advance" means an Advance which
bears interest based on the Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a
Eurodollar Advance for the relevant Interest Period, the applicable
British Bankers’ Association Interest Settlement Rate for
deposits in U.S. dollars appearing on the Telerate Screen 3750 (or
any successor screen) as of 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, provided that if no
such British Bankers’ Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the
rate determined by the Administrative Agent to be the rate at which
JPMCB or one of its Affiliate banks offers to place deposits in
U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, in the approximate amount
of JPMCB’s relevant Eurodollar Loan and having a maturity
equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears
interest based on the Eurodollar Rate.
"Eurodollar Rate" means, with respect to a
Eurodollar Advance or Eurodollar Loan for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin. The
Eurodollar Rate shall be rounded to the next higher multiple of
1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each
Lender or applicable Lending Installation and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it, by (i) the jurisdiction under the laws of which such
Lender or the Administrative Agent is incorporated or organized or
(ii) the jurisdiction in which the Administrative Agent’s or
such Lender’s principal executive office or such
Lender’s applicable Lending Installation is located.
"Extension Request" is defined in Section
2.16.
"Facility Termination Date" means August 28,
2009 or any later date as may be specified as the Facility
Termination Date in accordance with Section 2.16 or any earlier
date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any
day, an interest rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on
such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations at approximately 11:00 a.m. (New York time) on such day
on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Floating Rate" means, for any day, a rate per
annum equal to the Alternate Base Rate for such day, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which
bears interest based on the Floating Rate.
"Floating Rate Loan" means a Loan which bears
interest based on the Floating Rate.
"FRB" means the Board of Governors of the
Federal Reserve System.
"Fund" means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions
of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting
principles as in effect from time to time in the United States,
applied in a manner consistent with that used in preparing the
financial statements referred to in Section 5.4.
"including" means "including without the
limiting the generality of the foregoing".
"Indebtedness" of a Person means, without
duplication, such Person’s (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the
ordinary course of such Person’s business payable on terms
customary in the trade), (iii) obligations for borrowed money or
for the deferred purchase price of Property or services, whether or
not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances,
or other instruments, (v) obligations of such Person to purchase
securities or other Property arising out of or in connection with
the sale of the same or substantially similar securities or
Property, (vi) Capitalized Lease Obligations, (vii) any other
obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such
Person, (viii) Contingent Obligations in respect of any type of
obligation described in any of the other clauses of this
definition, (ix) obligations in respect of letters of credit
(excluding obligations in respect of letters of credit supporting
timely construction payments under a generation/transmission
agreement with American Transmission Company, LLC or under similar
agreements with American Transmission Company, LLC or other
parties), (x) obligations in respect of Sale and Leaseback
Transactions and (xi) Off-Balance Sheet Liabilities.
Obligations of any Person that would constitute Indebtedness
solely because of such Person’s capacity as a general partner
of a partnership that incurred such Indebtedness shall not
constitute Indebtedness of such Person if such Indebtedness is
non-recourse to the partnership and neither such Person nor any
Subsidiary thereof has any Contingent Obligations with respect to
such Indebtedness.
"Interest Period" means, with respect to a
Eurodollar Advance, a period of one, two, three or six months
commencing on a Business Day selected by the Borrower pursuant to
this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six
months thereafter, provided that if there is no such
numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month.
If a Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided that if said next
succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
"JPMCB" means JPMorgan Chase Bank, N.A., a
national banking association, in its individual capacity, and its
successors.
"Lenders" means the lending institutions listed
on the signature pages of this Agreement and their respective
successors and assigns.
"Lending Installation" means, with respect to a
Lender or the Administrative Agent, the office, branch, subsidiary
or affiliate of such Lender or the Administrative Agent listed on
the signature pages hereof or on a Schedule or otherwise selected
by such Lender or the Administrative Agent pursuant to Section
2.14.
"Lien" means any lien (statutory or other),
mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, a loan
made by such Lender pursuant to Article II (or any conversion or
continuation thereof).
"Loan Documents" means this Agreement and each
Note issued pursuant to Section 2.10.
"Madison Gas" means Madison Gas and Electric
Company, a Wisconsin corporation.
"Material Adverse Effect" means a material
adverse effect on the business, condition (financial or otherwise),
operations, performance or properties of the Borrower and its
Subsidiaries, taken as a whole, on the ability of the Borrower to
perform its obligations under this Agreement, or on the validity or
enforceability of this Agreement.
"Moody’s" means Moody’s Investors
Service, Inc.
"Multiemployer Plan" means a Plan maintained
pursuant to a collective bargaining agreement or any other
arrangement to which the Borrower or any member of the Controlled
Group is a party to which more than one employer is obligated to
make contributions.
"Non-U.S. Lender" is defined in Section
3.5(iv).
"Note" means any promissory note in the form of
Exhibit D issued at the request of a Lender pursuant to Section
2.10 to evidence its Loans.
"Obligations" means all unpaid principal
of and accrued and unpaid interest on the Loans, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to any Lender, the Administrative Agent
or any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means
(i) any repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person, (ii)
any liability under any Sale and Leaseback Transaction which is not
a Capitalized Lease, (iii) any liability under any so-called
"synthetic lease" transaction entered into by such Person, or (iv)
any obligation arising with respect to any other transaction which
is the functional equivalent of or takes the place of borrowing but
which does not constitute a liability on the balance sheets of such
Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of
Property (other than a Capitalized Lease) by such Person as lessee
which has an original term (including any required renewals and any
renewals effective at the option of the lessor) of one year or
more.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each
month.
"PBGC" means the Pension Benefit Guaranty
Corporation, or any successor thereto.
"Pension Plan" means a "pension plan", as such
term is defined in section 3(2) of ERISA, which is subject to Title
IV of ERISA, and to which the Borrower or any corporation, trade or
business that is, along with the Borrower, a member of a Controlled
Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section
4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under section
4069 of ERISA.
"Person" means any natural person, corporation,
firm, joint venture, partnership, limited liability company,
association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department
or instrumentality thereof.
"Pricing Schedule" means Schedule II.
"Prime Rate" means a rate per annum equal to the
prime rate of interest announced by JPMCB from time to time (which
is not necessarily the lowest rate charged to any customer),
changing when and as such prime rate changes.
"Principal Subsidiary" means any Subsidiary
(i) which together with its Subsidiaries has assets having an
aggregate book value exceeding 10% of the consolidated assets of
the Borrower and its Subsidiaries, or (ii) which together with its
Subsidiaries had net income in excess of 10% of the consolidated
net income of the Borrower and its Subsidiaries for the most
recently ended period of four fiscal quarters.
"Property" of a Person means any and all
property, whether real, personal, tangible, intangible, or mixed,
of such Person, or other assets owned, leased or operated by such
Person.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the FRB as
from time to time in effect and any successor thereto or other
regulation or official interpretation of the FRB relating to
reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the FRB as
from time to time in effect and any successor or other regulation
or official interpretation of the FRB relating to the extension of
credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve
System.
"Reportable Event" means a reportable event as
defined in Section 4043 of ERISA and the regulations issued under
such section, with respect to a Plan, excluding, however, such
events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event, provided, that a
failure to meet the minimum funding standard of Section 412 of the
Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the
aggregate having at least 66-2/3% of the Aggregate Commitment or,
if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least 66-2/3% of the principal amount of the
outstanding Advances.
"Reserve Requirement" means, with respect to an
Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency
liabilities.
"Resource Conservation and Recovery Act" means
the Resource Conservation and Recovery Act, 42 U.S.C. Section 690,
et seq. , as amended from time to time.
"S&P" means Standard and Poor’s
Ratings Services, a division of The McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale
or other transfer of Property by any Person with the intent to
lease such Property as lessee.
"SEC" means the Securities and Exchange
Commission.
"Single Employer Plan" means a Plan maintained
by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (i) any
corporation more than 50% of the outstanding securities having
ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more
than 50% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the
Property of the Borrower and its Subsidiaries, Property which
represents more than 10% of the consolidated assets of the Borrower
and its Subsidiaries or property which is responsible for more than
10% of the consolidated net sales or of the consolidated net income
of the Borrower and its Subsidiaries, in each case, as would be
shown in the consolidated financial statements of the Borrower and
its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made (or if
financial statements have not been delivered hereunder for that
month which begins the twelve-month period, then the financial
statements delivered hereunder for the quarter ending immediately
prior to that month).
"Taxes" means any and all present or future
taxes, duties, levies, imposts, deductions, charges or
withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes and Other Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its
nature as a Floating Rate Advance or a Eurodollar Advance.
"Unmatured Default" means an event which but for
the lapse of time or the giving of notice, or both, would
constitute a Default.
"Welfare Plan" means a "welfare plan", as such
term is defined in section 3(1) of ERISA.
"Wholly-Owned Subsidiary" of a Person means (i)
any Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled, directly or indirectly,
by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries
of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of
the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled.
1.2. Interpretation . All definitions shall
be equally applicable to both the singular and plural forms of the
defined terms. Unless otherwise specified, any reference to
an "Article", "Section", "Exhibit" or "Schedule" shall be a
reference to an Article or Section hereof or an Exhibit or Schedule
hereto.
1)
THE CREDITS
1.1. The Facility .
1.1.1. Description of Facility .
The Lenders grant to the Borrower a revolving credit facility
pursuant to which, and upon the terms and subject to the conditions
herein set forth, each Lender severally agrees to make Loans to the
Borrower in accordance with Section 2.2 from time to time during
the period from the date hereof to the Facility Termination Date;
provided that the aggregate principal amount of all Advances
shall not at any time exceed the Aggregate Commitment and (b) the
outstanding principal amount of all Loans of any Lender shall not
at any time exceed the amount of such Lender’s Commitment..
The Borrower may borrow, repay and reborrow hereunder at any
time prior to the Facility Termination Date.
1.1.2. Repayment of Facility .
All outstanding Advances and all other unpaid Obligations
shall be paid in full by the Borrower on the Facility Termination
Date.
1.2. Advances .
1.2.1. Advances . Each
Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment.
1.2.2. Types of Advances .
The Advances may be Floating Rate Advances or Eurodollar
Advances, or a combination thereof, selected by the Borrower in
accordance with Section 2.2.3.
1.2.3. Method of Selecting Types and
Interest Periods for Advances . The Borrower shall select
the Type of Advance and, in the case of each Eurodollar Advance,
the Interest Period applicable thereto, from time to time.
The Borrower shall give the Administrative Agent irrevocable
notice (a "Borrowing Notice") not later than 1:00 p.m. (New York
time) (x) on the Borrowing Date of each Floating Rate Advance and
(y) at least three Business Days before the Borrowing Date for each
Eurodollar Advance. A Borrowing Notice shall specify:
(i)
the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii)
the aggregate amount of such Advance,
(iii)
the Type of Advance selected, and
(iv)
in the case of each Eurodollar Advance, the
Interest Period applicable thereto (which may not end after the
Facility Termination Date).
1.2.4. Conversion and Continuation of
Outstanding Advances . Floating Rate Advances shall
continue as Floating Rate Advances unless and until such Floating
Rate Advances are either converted into Eurodollar Advances in
accordance with this Section 2.2.4 or are repaid in accordance with
Section 2.6. Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (x)
such Eurodollar Advance is or was repaid in accordance with Section
2.6 or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that,
at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.5, the Borrower may
elect from time to time to convert all or any part of a Floating
Rate Advance into a Eurodollar Advance. The Borrower shall
give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating
Rate Advance into a Eurodollar Advance, or continuation of a
Eurodollar Advance, not later than 1:00 p.m. (New York time) at
least three Business Days prior to the date of the requested
conversion or continuation, specifying:
(i)
the requested date, which shall be a Business
Day, of such conversion or continuation,
(ii)
the aggregate amount and Type of the Advance
which is to be converted or continued, and
(iii)
the amount of such Advance(s) which is to be
converted into or continued as a Eurodollar Advance and the
duration of the Interest Period applicable thereto.
1.3. Method of Borrowing .
Not later than 2:00 p.m. (New York time) on each Borrowing
Date, each Lender shall make available its Loan or Loans in funds
immediately available in Chicago to the Administrative Agent at its
address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the
Lenders available to the Borrower at the Administrative
Agent’s aforesaid address.
1.4. Commitment Fee; Reductions in
Aggregate Commitment . The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee at a per annum rate equal to the Applicable Fee Rate on the
average daily unused amount of such Lender’s Commitment from
the date hereof to and including the Facility Termination Date,
payable on the last day of each calendar quarter hereafter and on
the Facility Termination Date. The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part ratably among
the Lenders in an amount equal to $5,000,000 or a higher integral
multiple of $1,000,000 upon at least three Business Days’
written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction, provided, that the
amount of the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Advances. All
accrued commitment fees shall be payable on the effective date of
any termination of the obligations of the Lenders to make Loans
hereunder.
1.5. Minimum Amount of Each
Advance . Each Eurodollar Advance shall be in the amount
of $1,000,000 (or a higher integral multiple of $500,000), and each
Floating Rate Advance shall be in the amount of (i) $1,000,000 (or
a higher integral multiple of $500,000) or, if applicable, (ii) the
amount of then outstanding commercial paper being repaid with the
proceeds of such Floating Rate Advance, provided that any
Floating Rate Advance may be in the amount of the unused Aggregate
Commitment. The Borrower shall not request a Eurodollar
Advance if, after giving effect to the requested Eurodollar
Advance, more than ten separate Eurodollar Advances would be
outstanding.
1.6. Optional Principal Payments .
The Borrower may from time to time pay on any Business Day,
without penalty or premium, all outstanding Floating Rate Advances,
or, in the amount of $1,000,000 or a higher integral multiple of
$500,000, any portion of the outstanding Floating Rate Advances
upon notice to the Administrative Agent (not later than 1:00 p.m.
(New York time) on the proposed day of payment. The Borrower
may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty
or premium, all outstanding Eurodollar Advances or, in the amount
of $1,000,000 or a higher integral multiple of $500,000, any
portion of the outstanding Eurodollar Advances upon three Business
Days’ prior notice to the Administrative Agent.
1.7. Changes in Interest Rate,
etc. Each Floating Rate Advance shall bear interest on
the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section
2.2.4 to but excluding the date it becomes due or is converted into
a Eurodollar Advance pursuant to Section 2.2.4, at a rate per annum
equal to the Floating Rate for such day. Changes in the rate
of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear
interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto
to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurodollar Advance.
No Interest Period may end after the Facility Termination
Date.
1.8. Rates Applicable After
Default . Notwithstanding anything to the contrary
contained in Section 2.2.3 or Section 2.2.4, during the continuance
of a Default or Unmatured Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders
to changes in interest rates), declare that no Advance may be made
as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default, the Required Lenders
may, at their option, by notice to the Borrower (which notice may
be revoked at the option of the Required Lenders notwithstanding
any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each
Eurodollar Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 1% per annum and/or (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 1% per annum,
provided that, during the continuance of a Default under
Section 7.7 or 7.8, the interest rates set forth in clauses (i) and
(ii) above shall be applicable to all applicable Advances without
any election or action on the part of the Administrative Agent or
any Lender.
1.9. Method of Payment . All
payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent’s
address specified pursuant to Article XIII, or at any other Lending
Installation of the Administrative Agent specified in writing by
the Administrative Agent to the Borrower, by noon (local time) on
the date when due and shall be applied ratably by the
Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent
received at its address specified pursuant to Article XIII or at
any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative
Agent is hereby authorized to charge the account of the Borrower
maintained with JPMCB for each payment of principal, interest and
fees as it becomes due hereunder.
1.10. Noteless Agreement; Evidence of
Indebtedness . (1) Each Lender shall maintain in
accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(ii)
The Administrative Agent shall also maintain
accounts in which it will record (a) the amount of each Loan made
hereunder, the Type thereof and the Interest Period with respect
thereto, (b) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each
Lender hereunder and (c) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each
Lender’s share thereof.
(iii)
The entries maintained in the accounts
maintained pursuant to paragraphs (i) and (ii) above shall be
prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided, that the failure of
the Administrative Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of
the Borrower to repay the Obligations in accordance with their
terms.
(iv)
Any Lender may request that its Loans be
evidenced by Notes. In such event, the Borrower shall
prepare, execute and deliver to such Lender a Note payable to the
order of such Lender. Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by a Note
payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender
or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in
paragraphs (i) and (ii) above.
1.2. Telephonic Notices .
The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances,
effect selections of Types of Advances, and to transfer funds based
on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be
acting on behalf of the Borrower, it being understood that the
foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given
telephonically. The Borrower agrees to deliver promptly to
the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice signed by an Authorized Officer.
If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders,
the records of the Administrative Agent and the Lenders shall
govern absent manifest error.
1.3. Interest Payment Dates; Interest
and Fee Basis . Interest accrued on each Floating Rate
Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, on any date on
which the Floating Rate Advance is prepaid, whether due to
acceleration or otherwise, and at maturity. Interest accrued
on that portion of the outstanding principal amount of any Floating
Rate Advance converted into a Eurodollar Advance on a day other
than a Payment Date shall be payable on the date of conversion.
Interest accrued on each Eurodollar Advance shall be payable
on the last day of its applicable Interest Period, on any date on
which such Eurodollar Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each
Eurodollar Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest and commitment
fees shall be calculated for actual days elapsed on the basis of a
360-day year, except that interest calculated based on the Prime
Rate shall be calculated for actual days elapsed on the basis of a
365, or when appropriate 366, day year. Interest shall be
payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment,
such extension of time shall be included in computing interest in
connection with such payment.
1.4. Notification of Advances,
Interest Rates, Prepayments and Commitment Reductions .
Promptly after receipt thereof, the Administrative Agent will
notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The
Administrative Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
1.5. Lending Installations .
Each Lender may book its Loans at any Lending Installation
selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to
any such Lending Installation and any Loan issued hereunder shall
be deemed held by each Lender for the benefit of any such Lending
Installation. Each Lender may, by written notice to the
Administrative Agent and the Borrower in accordance with Article
XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan
payments are to be made.
1.6. Non-Receipt of Funds by the
Administrative Agent . Unless the Borrower or a Lender,
as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal, interest
or fees to the Administrative Agent for the account of the Lenders,
that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to
the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative
Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers such amount at a rate
per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days
and, thereafter, the interest rate applicable to the relevant Loan
or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
1.7. Extension of Facility Termination
Date . (2) Not more than 60 days or less than 45
days prior to the Facility Termination Date then in effect, the
Borrower may request an extension of the Facility Termination Date
by submitting to the Administrative Agent an Extension Request, a
copy of which the Administrative Agent shall promptly furnish to
each Lender. Each Lender shall, not less than 30 days prior
to the Facility Termination Date then in effect, notify the
Borrower and the Administrative Agent of its election, in its sole
and absolute discretion, to extend or not extend the Facility
Termination Date as requested in such Extension Request. If
the Required Lenders approve in writing the extension of the
Facility Termination Date requested in such Extension Request, the
Facility Termination Date shall automatically and without any
further action by any Person be extended for the period specified
in such Extension Request; provided that (i) each extension
pursuant to this Section 2.16 shall be for a maximum of 364
days and (ii) the Commitment of any Lender that does not consent in
writing to an Extension Request (an " Objecting Lender ")
shall, unless earlier terminated in accordance with this Agreement,
expire on the Facility Termination Date in effect on the date of
such Extension Request (such Facility Termination Date, the
"Commitment Expiration Date" for such Objecting Lender). If,
as of the 30th day prior to the Facility Termination Date then in
effect, the Required Lenders have not approved in writing the
extension of the Facility Termination Date requested in an
Extension Request, the Facility Termination Date shall not be
extended pursuant to such Extension Request. The
Administrative Agent shall promptly notify (a) the Lenders and the
Borrower of any extension of the Facility Termination Date pursuant
to this Section 2.16 and (z) the Borrower and each other
Lender of any Lender that becomes an Objecting Lender.
(iii)
Subject to Section 2.16(iii), Loans owing to any Objecting
Lender shall be repaid in full on or before such Objecting
Lender’s Commitment Expiration Date.
(iv)
The Borrower may, at its sole expense and effort, upon notice to
any Objecting Lender and the Administrative Agent, require such
Objecting Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 12.3 ), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (a) the Borrower
shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld or delayed,
and (b) such Objecting Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it
hereunder, including amounts payable pursuant to Section 3.4
(assuming for such purpose, that such Objecting Lender’s
Loans were prepaid on the date of such assignment), from the
assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other
amounts).
ARTICLE II
YIELD PROTECTION; TAXES
2.1. Yield Protection . If,
on or after the date of this Agreement, the adoption of any law or
any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or
any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender or applicable Lending
Installation with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable
agency:
(i)
subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender
in respect of its Eurodollar Loans, or
(ii)
imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar
Advances), or
(iii)
imposes any other condition the result of which
is to increase the cost to any Lender or applicable Lending
Installation of making, funding or maintaining its Eurodollar Loans
or reduces any amount receivable by any Lender or applicable
Lending Installation in connection with its Eurodollar Loans, or
requires any Lender or applicable Lending Installation to make any
payment calculated by reference to the amount of Eurodollar Loans
held or interest received by it, by an amount deemed material by
such Lender, and the result of any of the foregoing is to increase
the cost to such Lender or the applicable Lending Installation of
making or maintaining its Eurodollar Loans or Commitment or to
reduce the return received by such Lender or the applicable Lending
Installation in connection with such Eurodollar Loans or
Commitment, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in
amount received; provided that no Lender shall be entitled
to demand such compensation more than 90 days following the last
day of the Interest Period in respect of which such demand is made;
and provided , further , that the foregoing proviso
shall in no way limit the right of any Lender to demand or receive
such compensation to the extent that such compensation relates to
the retroactive application of any law, regulation, guideline or
request described above if such demand is made within 90 days after
the implementation of such retroactive law, interpretation,
guideline or request.
2.2. Changes in Capital Adequacy
Regulations . If a Lender determines the amount of
capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15
days of demand by such Lender the Borrower shall pay such Lender
the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans or its
Commitment (after taking into account such Lender’s policies
as to capital adequacy). " Change " means (i) any
change after the date of this Agreement in (or in the
interpretation of) the Risk-Based Capital Guidelines or (ii) any
adoption of or change in (or any change in the interpretation of)
any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which
affects the amount of capital required or expected to be maintained
by any Lender or any Lending Installation or any corporation
controlling any Lender. " Risk-Based Capital
Guidelines " means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the
United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
2.3. Availability of Types of
Advances . If any Lender determines that maintenance of
its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether
or not having the force of law, or if the Required Lenders
determine that (i) deposits of a type and maturity appropriate to
match fund Eurodollar Advances are not available or (ii) the
interest rate applicable to Eurodollar Advances does not accurately
reflect the cost of making or maintaining Eurodollar Advances, then
(i) the obligation of any such affected Lender to make, continue or
convert Loans into Eurodollar Loans shall be suspended (subject to
the following paragraph of this Section 3.3) until the
Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist and (ii)
all Eurodollar Loans of such affected Lender then outstanding
shall, on the last day of the then applicable Interest Period (or
such earlier date as such affected Lender shall designate upon not
less than five Business Days’ prior written notice to the
Administrative Agent), be automatically converted into Floating
Rate Loans.
If the obligation of any Lender to make,
continue or convert into Eurodollar Loans has been suspended
pursuant to the preceding paragraph, then, unless and until the
Administrative Agent shall notify the applicable Borrower and the
Lenders that the circumstances causing such suspension no longer
exist, (i) all Loans that would otherwise be made by such Lender as
Eurodollar Loans shall instead be made as Floating Rate Loans and
(ii) to the extent that Eurodollar Loans of such Lender have been
converted into Floating Rate Loans pursuant to the preceding
paragraph or made instead as Floating Rate Loans pursuant to the
preceding clause (i), all payments and prepayments of principal
that would have otherwise been applied to such Eurodollar Loans of
such Lender shall be applied instead to such Floating Rate Loans of
such Lender.
2.4. Funding Indemnification .
If any conversion or payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise,
or a Eurodollar Advance is not made, paid, continued or converted
on the date specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender for
any loss or cost incurred by it resulting therefrom, including any
loss or cost in liquidating or employing deposits acquired to fund
or maintain such Eurodollar Advance.
2.5. Taxes . (3) All
payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all Taxes. If
the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (d)
the Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(iv)
In addition, the Borrower hereby agrees to pay
any present or future stamp or documentary taxes and any other
excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any other Loan Document or
from the execution or delivery of, or otherwise with respect to,
any Loan Document (" Other Taxes ").
(v)
The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes
or Other Taxes (including any Taxes or Other Taxes imposed on
amounts payable under this Section 3.5) paid by the Administrative
Agent or such Lender as a result of its Commitment, any Loans made
by it hereunder, or otherwise in connection with its participation
in this Agreement and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or the applicable
Lender makes demand therefor pursuant to Section 3.6.
(vi)
Each Lender that is not incorporated under the
laws of the United States of America or a state thereof (each a "
Non-U.S. Lender ") agrees that it will, not more than ten
Business Days after the date of this Agreement (or, if later, the
date it becomes a party hereto), (i) deliver to each of the
Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI,
certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes, and (ii) deliver to each of
the Borrower and the Administrative Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or before
the date that such form expires or becomes obsolete, and (y) after
the occurrence of any event requiring a change in the most recent
forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the
Administrative Agent. All forms or amendments described in
the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes,
unless an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect
to it and such Lender advises the Borrower and the Administrative
Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(vii)
For any period during which a Non-U.S. Lender
has failed to provide the Borrower with an appropriate form
pursuant to clause (iv) above (unless such failure is due to a
change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall
not be entitled to indemnification under this Section 3.5 with
respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or
subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(viii)
Any Lender that is entitled to an exemption from
or reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(ix)
If the U.S. Internal Revenue Service or any
other governmental authority of the United States or any other
country or any political subdivision thereof asserts a claim that
the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate
form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify
the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this subsection, together with all
costs and expenses related thereto (including attorneys fees and
time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The
obligations of the Lenders under this Section 3.5(vii) shall
survive the payment of the Obligations and termination of this
Agreement.
1.2. Lender Statements; Survival of
Indemnity . To the extent reasonably possible, each
Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid
the unavailability of Eurodollar Advances under Section 3.3, so
long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to
the Administrative Agent) as to the amount due, if any, under
Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall
set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though
each Lender funded its Eurodollar Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt by
the Borrower of such written statement. The obligations of
the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
1.3. Substitution of Affected
Lender . If (i) the obligation of any Lender to make or
to convert or continue outstanding Loans as or into Eurodollar
Loans has been suspended pursuant to Section 3.3 or (ii) any Lender
has demanded compensation under Section 3.1, 3.2 or 3.5, then the
Borrower shall have the right to designate a substitute lender or
lenders (which may be one or more of the other Lenders) mutually
satisfactory to the Borrower and the Administrative Agent (whose
consent shall not be unreasonably withheld or delayed) to purchase
for cash, pursuant to an Assignment Agreement in substantially the
form of Exhibit C, the Loans of such Lender and to assume the
Commitment of such Lender, without recourse to or warranty by, or
expense to, such Lender, for a purchase price equal to the
principal amount of all of such Lender’s Loans plus any
accrued and unpaid interest thereon and the accrued but unpaid fees
in respect of such Lender’s Commitment hereunder plus such
amount, if any, as would be payable pursuant to Section 3.4 if the
Loans of such Lender were prepaid in its entirety on the date of
consummation of such assignment.
ARTICLE II
CONDITIONS PRECEDENT
2.1. Initial Loan . The
Lenders shall not be required to make the initial Loan unless the
Borrower has furnished to the Administrative Agent with sufficient
copies for the Lenders:
(i)
Copies of the restated articles or certificate
of incorporation of the Borrower, together with all amendments, and
a certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation, as well
as any other information required by Section 326 of the USA Patriot
Act or necessary for the Administrative Agent or any Lender to
verify the identity of Borrower as required by Section 326 of the
USA Patriot Act.
(ii)
Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of its by-laws and of its Board of
Directors’ resolutions and of resolutions or actions of any
other body authorizing the execution of the Loan Documents to which
the Borrower is a party.
(iii)
An incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signatures of the
Authorized Officers and any other officers of the Borrower
authorized to sign the Loan Documents to which the Borrower is a
party, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the Borrower.
(iv)
A certificate, signed by the chief financial
officer or treasurer of the Borrower, stating that on the date of
the initial Loan no Default or Unmatured Default has occurred and
is continuing.
(v)
A written opinion of the Borrower’s
counsel, addressed to the Lenders in substantially the form of
Exhibit A.
(vi)
Any Note requested by a Lender pursuant to
Section 2.10 payable to the order of such requesting Lender.
(vii)
Evidence satisfactory to the Administrative
Agent of any required governmental approvals or consents regarding
this Agreement.
(viii)
Such other documents as any Lender or its
counsel may have reasonably requested.
2.2. Each Loan . The Lenders
shall not be required to make any Loan unless on the date of such
Loan:
(i)
No Default or Unmatured Default exists or would
result from such Loan.
(ii)
The representations and warranties contained in
Article V (other than, in the case of each Loan to be made after
the date of the initial Loan, Sections 5.5 and 5.7) are true and
correct in all material respects as of the date of such Loan except
to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation
or warranty shall have been true and correct on and as of such
earlier date.
(iii)
All legal matters incident to the making of such
Loan shall be satisfactory to the Lenders and their counsel
(including evidence satisfactory to the Administrative Agent of any
required governmental approvals or consents regarding such
Loan).
Each delivery of a Borrowing Notice shall
constitute a representation and warranty by the Borrower that the
conditions contained in Sections 4.2(i) and (ii) have been
satisfied. Any Lender may require delivery of a duly
completed compliance certificate in substantially the form of
Exhibit B as a condition to making a Loan.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the
Lenders that:
3.1. Existence and Standing .
Each of the Borrower and each Principal Subsidiary is a
corporation, partnership (in the case of Principal Subsidiaries
only) or limited liability company duly and properly incorporated
or organized, as the case may be, validly existing a
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