EXECUTION
VERSION
EXHIBIT 10.1
CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 2008
AMONG
MGE ENERGY, INC.,
THE LENDERS,
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT,
AND
U.S. BANK NATIONAL
ASSOCIATION,
AS SYNDICATION 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
ARTICLE II
THE CREDITS
9
2.1.
The Facility
9
2.2.
Advances
10
2.3.
Method of Borrowing
11
2.4.
Upfront Fee; Commitment Fee; Reductions
in Aggregate Commitment
11
2.5.
Minimum Amount of Each Advance
11
2.6.
Optional Principal Payments
12
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
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
16
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
19
4.1.
Initial Advance
19
4.2.
Each Advance
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
22
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
23
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
29
ARTICLE VII
DEFAULTS
30
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES
31
8.1.
Acceleration
31
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
34
9.10.
Nonliability of Lenders
35
9.11.
Confidentiality
35
9.12.
Nonreliance
35
9.13.
Disclosure
35
9.14.
USA PATRIOT ACT NOTIFICATION
35
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
37
10.9.
Notice of Default
38
10.10.
Rights as a Lender
38
10.11.
Lender Credit Decision
38
10.12.
Successor Administrative Agent
39
10.13.
Administrative Agent and Arranger
Fees
40
10.14.
Delegation to Affiliates
40
10.15.
Syndication Agent
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 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 December 30,
2008, is among MGE Energy, Inc., the Lenders JPMorgan Chase Bank,
N.A., a national banking association, as Administrative Agent and
U.S. Bank National Association, as Syndication 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 amended or modified 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 highest of
(i) the Prime Rate for such day, (ii) the sum of the Federal Funds
Effective Rate for such day plus 1/2% per annum and (iii) the
Eurodollar Base Rate that would be applicable for an Interest
Period of one month beginning on such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus
1.0%.
“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 that
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.
“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980.
“CERCLIS” means the
Comprehensive Environmental Response Compensation Liability
Information System List.
“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.
“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 that,
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.
“Eurodollar Advance” means an
Advance that 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 that 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) 1%. 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 September 30, 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.
“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 in
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.
“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 hereto 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.
“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
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.
“Regulation U” means
Regulation U of the FRB.
“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 aggregate
principal amount of all outstanding Loans.
“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.
“Response Date” is defined in
Section 2.16.
“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 all present or
future taxes, duties, levies, imposts, deductions, charges or
withholdings, 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 . Definitions herein shall be equally
applicable to both the singular and plural forms of the terms
defined. The words “include” and
“including” mean “including without limiting the
generality of the foregoing”. Unless otherwise
specified, (a) any reference to an Article, a Section, an Exhibit
or a Schedule means an Article or a Section hereof or an Exhibit or
a Schedule hereto; and (b) any reference to a statute or regulation
shall be construed as including all statutory and regulatory
provisions amending, replacing, supplementing or interpreting such
statute or regulation.
ARTICLE
II
THE CREDITS
2.1.
The Facility .
2.1.1. 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.
2.1.2. Limitations on
Outstandings . In no event may (a) the aggregate
principal amount of all outstanding Loans at any time exceed the
Aggregate Commitment or (b) the aggregate principal amount of all
outstanding Loans of any Lender at any time exceed the amount of
such Lender’s Commitment.
2.1.3. Availability of
Facility . Subject to the terms of this Agreement, the
facility is available from the date hereof to the Facility
Termination Date, and the Borrower may borrow, repay and reborrow
at any time prior to the Facility Termination Date. The
Commitments shall expire on the Facility Termination
Date.
2.1.4. Repayment of
Facility . Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.2.
Advances .
2.2.1. 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.
2.2.2. 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.
2.2.3. 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).
2.2.4. 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.
2.3.
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.
2.4.
Upfront Fee; Commitment Fee; Reductions in Aggregate
Commitment . The Borrower agrees to pay to the
Administrative Agent for the account of each Lender on the date
hereof an upfront fee equal to 0.125% of such Lender’s
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 0.175% of 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 (beginning on March 31, 2009) 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 an integral
multiple of $1,000,000 in excess of $5,000,000 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.
2.5.
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.
2.6.
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.
2.7.
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 hereof, 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.
2.8.
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 Loans without any election or
action on the part of the Administrative Agent or any
Lender.
2.9.
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.
1.1.
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.
2.11.
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.
2.12.
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.
2.13.
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.
2.14.
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.
2.15.
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.
2.16. Extension of Facility
Termination Date . 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 a request for an extension to the Administrative
Agent (an “ Extension Request ”). The
Extension Request must specify the new Facility Termination Date
requested by the Borrower and the date (which must be at least 30
days after the Extension Request is delivered to the Administrative
Agent) as of which the Lenders must respond to the Extension
Request (the “ Response Date ”). The new
Facility Termination Date shall be the first anniversary of the
Facility Termination Date in effect at the time the Extension
Request is received, including the Facility Termination Date as one
of the days in the calculation of the days elapsed. The
Borrower may make a maximum of two such requests. Promptly
upon receipt of an Extension Request, the Administrative Agent
shall notify each Lender of the contents thereof and shall request
each Lender to approve the Extension Request. Each Lender
approving the Extension Request shall deliver its written consent
no later than the Response Date. If the consent of each of
the Lenders is received by the Administrative Agent (excluding any
Person which ceases to be a Lender pursuant to Section 3.7), the
Facility Termination Date specified in the Extension Request shall
become effective on the existing Facility Termination Date and the
Administrative Agent shall promptly notify the Borrower and each
Lender of the new Facility Termination Date.
ARTICLE
III
YIELD PROTECTION; TAXES
3.1.
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 participations
therein, 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 any applicable
Lending Installation of making, funding or maintaining its
Eurodollar Loans or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with its
Eurodollar Loans, or requires any Lender or any 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.
3.2.
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.
3.3.
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.
3.4.
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.
1.1.
Taxes . (2) 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.
(ii)
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
”).
(iii)
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 or any Loans
made 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 such Lender makes
demand therefor pursuant to Section 3.6.
(iv)
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.
(v)
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.
(vi)
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.
(vii)
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.
3.6.
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.
3.7. 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 hereto, the outstanding 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 outstanding
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 outstanding Loans of such Lender were prepaid in
full on the date of consummation of such assignment.
ARTICLE
IV
CONDITIONS PRECEDENT
4.1.
Initial Advance . The Lenders shall not be required to
make the initial Advance hereunder unless the Borrower has made
payment to the Administrative Agent for the account of the Lenders
in immediately available funds the upfront fees payable under
Section 2.4 and the Borrower has furnished to the Administrative
Agent with sufficient copies for the Lenders:
(i)
Copie
