UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report: (Date of earliest event reported) November 21, 2006
CORNING INCORPORATED
(Exact name of registrant as specified in its charter)
New York 1-3247 16-0393470
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
One Riverfront Plaza, Corning, New York 14831
(Address of principal executive offices) (Zip Code)
(607) 974-9000
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
Item 2.03 Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant
On November 21, 2006, Corning Incorporated ("Corning" or the "Company")
entered into an Amended and Restated Credit Agreement (the "Amended and Restated
Credit Agreement"), which amends and restates the Company's Credit Agreement
dated March 17, 2005.
The Amended and Restated Credit Agreement is with a group of banks that
include Citibank, N.A., JP Morgan Chase Bank, N.A., Bank of America, N.A., The
Bank of Tokyo-Mitsubishi UFJ, Ltd., Wachovia Bank, National Association,
Barclays Bank PLC, Deutsche Bank AG New York Branch, Mizuho Corporate Bank, Ltd.
and Standard Chartered Bank. Under the Amended and Restated Credit Agreement,
borrowings are available in Dollars, Sterling, Yen and Euros to Corning and any
direct or indirect wholly-owned subsidiary of Corning in a maximum amount
outstanding at any one time of $1,125,000,000 ($200,000,000 of which is
available for Letters of Credit) (the "Commitment Amount"). The Commitment
Amount may be increased over the term by $125,000,000. The Amended and Restated
Credit Agreement is scheduled to terminate on November 21, 2011 (the
"Termination Date"). The Termination Date may be extended by one year on
Corning's request on each of November 21, 2007 and November 21, 2008. The
Amended and Restated Credit Agreement contains affirmative and negative
covenants that Corning must comply with, including (a) periodic financial
reporting requirements, (b) maintaining a ratio of consolidated debt for
borrowed money to consolidated total capital of no greater than 0.50 to 1.00,
(c) maintaining a ratio of consolidated adjusted EBITDA to consolidated interest
expense of not less than 3.50 to 1.00, (d) limitation on liens, (e) limitation
on the incurrence of subsidiary indebtedness, (f) limitation on mergers, (g)
restrictions on the declaration of dividends, as well as other customary
covenants. The Amended and Restated Credit Agreement also provides that loans to
subsidiaries will be guaranteed by Corning.
Letters of Credit in the aggregate amount of $43,638,000 have been issued
under the Amended and Restated Credit Agreement. There are no other amounts
outstanding under the Amended and Restated Credit Agreement.
From time to time, certain of the Lenders under the Amended and Restated
Credit Agreement provide customary commercial and investment banking services to
the Company.
The foregoing description of the material terms of the Amended and Restated
Credit Agreement is qualified in its entirety by reference to the Amended and
Restated Credit Agreement, which is attached as Exhibit 10.1 to this report and
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
10.1 Amended and Restated Credit Agreement dated as of November 21, 2006,
among Corning Incorporated, Citibank N.A., JP Morgan Chase Bank, N.A., Bank of
America, N.A., The Bank of Tokyo-Mitsubishi UFG, Ltd., Wachovia Bank, National
Association, Barclays Bank PLC, Deutsche Bank AG New York Branch, Mizuho
Corporate Bank, Ltd. and Standard Chartered Bank.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CORNING INCORPORATED
Registrant
Date: November 27, 2006 By: /s/ Katherine A. Asbeck
--------------------------------------------
Katherine A. Asbeck
Senior Vice President-Finance
EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 21, 2006
CORNING INCORPORATED, a New York corporation (the "Company"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
and issuers of letters of credit ("Initial Issuing Banks") listed on the
signature pages hereof, JPMORGAN CHASE BANK, N.A., as syndication agent, BANK OF
AMERICA, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, WACHOVIA
BANK, NATIONAL ASSOCIATION, BARCLAYS BANK PLC and DEUTSCHE BANK SECURITIES INC.,
as documentation agents, CITIGROUP GLOBAL MARKETS INC. and J.P. MORGAN
SECURITIES INC., as joint lead arrangers and joint bookrunners, and CITIBANK,
N.A. ("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
PRELIMINARY STATEMENT. The Company, the lenders parties thereto and
Citibank, as agent, are parties to a Credit Agreement dated as of March 17, 2005
(the "Existing Credit Agreement"). Subject to the satisfaction of the conditions
set forth in Section 3.01, the Company, the parties hereto and Citibank, as
Agent, desire to amend and restate the Existing Credit Agreement as herein set
forth.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Consolidated EBITDA" means Consolidated EBITDA plus any net
cash received from Equity Affiliates, minus any net cash paid to Equity
Affiliates, minus any income from Equity Affiliates plus any income to
Equity Affiliates.
"Advance" means an advance by a Lender to any Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at 388 Greenwich Street, New York, New York 10013, Account No.
36852248, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Committed Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and the
Lenders for such purpose and (c) in any such case, such other account of
the Agent as is designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum and
(b) for Eurocurrency Rate Advances, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
---------------------------- --------------------------------
Public Debt Rating Applicable Margin for
S&P/Moody's Eurocurrency Rate Advances
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 1
A- or A3 or above 0.230%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 2
BBB+ or Baa1 0.270%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 3
BBB or Baa2 0.350%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 4
BBB- or Baa3 0.500%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 5
BB+ or Ba1 0.700%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 6
BB or Ba2 0.800%
---------------------------- --------------------------------
---------------------------- --------------------------------
Level 7
Lower than Level 6 1.000%
---------------------------- --------------------------------
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
A- or A3 or above 0.070%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
BBB+ or Baa1 0.080%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB or Baa2 0.100%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
BBB- or Baa3 0.125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+ or Ba1 0.175%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 6
BB or Ba2 0.200%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 7
Lower than Level 6 0.250%
-------------------------------- -----------------------------
"Applicable Utilization Fee" means, as of any date that the aggregate
Advances exceed 50% of the aggregate Commitments, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
A- or A3 or above 0.050%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
BBB+ or Baa1 0.100%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
BBB or Baa2 0.100%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
BBB- or Baa3 0.125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 5
BB+ or Ba1 0.125%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 6
BB or Ba2 0.250%
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 7
Lower than Level 6 0.250%
-------------------------------- -----------------------------
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance denominated in Dollars that bears
interest as provided in Section 2.07(a)(i).
"Borrowers" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by each of the Lenders pursuant to Section 2.01(a).
"Borrowing Minimum" means, in respect of Advances denominated in
Dollars, $10,000,000, in respect of Advances denominated in Sterling,
(pound)10,000,000, in respect of Advances denominated in Yen,
(Y)100,000,000 and, in respect of Advances denominated in Euros,
(euro)10,000,000.
"Borrowing Multiple" means, in respect of Advances denominated in
Dollars, $1,000,000 in respect of Advances denominated in Sterling,
(pound)1,000,000, in respect of Advances denominated in Yen, (Y)10,000,000
and, in respect of Advances denominated in Euros, (euro)1,000,000.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Rate Advances, on which dealings
are carried on in the London interbank market and banks are open for
business in London
and in the country of issue of the currency of such Eurocurrency Rate
Advance (or, in the case of an Advance denominated in Euro, on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open).
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section 2.18(a).
"Committed Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of Japan and Euros.
"Company Information" has the meaning specified in Section 9.08.
"Consenting Lender" has the meaning specified in Section 2.19(b).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Debt for Borrowed Money" of any Person means all items
that, in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Consolidated EBITDA" means, with respect to any Person for any
period, an amount equal to (a) Consolidated Net Income (before discontinued
operations) of such Person for such period plus (b) the sum of, in each
case to the extent included in the calculation of such Consolidated Net
Income of such Person for such period in accordance with GAAP, but without
duplication, (i) any provision for income taxes, (ii) Consolidated Interest
Expense, (iii) loss from extraordinary items, (iv) depreciation, depletion
and amortization of intangibles or financing or acquisition costs, and (v)
all other non-cash charges and non-cash losses for such period (including,
but not limited to, stock option expense and restructuring and impairment
charges), minus (c) the sum of, in each case to the extent included in the
calculation of Consolidated Net Income of such Person for such period in
accordance with GAAP, but without duplication, (i) any credit for income
tax, (ii) gains from extraordinary items for such period, (iii) any
aggregate net gain from the sale, exchange or other disposition of capital
assets by such Person, (iv) cash payments for previously reserved charges
and (v) any other non-cash gains which have been added in determining
Consolidated Net Income.
"Consolidated Interest Expense" means, for any period for any Person,
all items that, in accordance with GAAP, would be classified as interest
expense on a Consolidated statement of income of such Person for such
period.
"Consolidated Net Income" means, for any Person for any period, the
net income (or loss) of such Person and its Subsidiaries for such period,
determined on a Consolidated basis in conformity with GAAP.
"Consolidated Net Worth" means, at any time, stockholders' equity as
set forth or reflected on the most recent Consolidated balance sheet of the
Company and its Subsidiaries, plus the sum of minority interests,
convertible preferred securities, and preferred stock, all determined in
accordance with GAAP and consistently applied.
"Consolidated Total Capital" means, at any time, the sum of (i)
Consolidated Net Worth, and (ii) Consolidated Debt for Borrowed Money.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables not overdue by more than 90 days incurred in the ordinary course
of such Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of credit,
(g) all net obligations of such Person in respect of Hedge Agreements, (h)
all Debt of others referred to in clauses (a) through (g) above or clause
(i) below (collectively, "Guaranteed Debt") guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly
or indirectly by such Person through an agreement (1) to pay or purchase
such Guaranteed Debt or to advance or supply funds for the payment or
purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee
or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Guaranteed Debt or
to assure the holder of such Guaranteed Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (i) all Debt referred to in clauses (a)
through (h) above (including Guaranteed Debt) secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Designated Subsidiary" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit D hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to
the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 9.07, the Company, in each case, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither the Company nor an Affiliate of the Company shall qualify as
an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Affiliate" means any Person which the Company accounts for in
its Consolidated financial statements on an equity basis pursuant to GAAP.
"Equivalent" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement, and the "Equivalent" in any Committed Currency of Dollars means
the equivalent in such Committed Currency of Dollars determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange such Committed Currency for Dollars in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days, unless the 30-day
notice requirement with respect to such event has been waived by the PBGC;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of the Company or
any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Company or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
the imposition of a lien under Section 302(f) of ERISA shall have been met
with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period, the rate appearing on
Page 248 of the Moneyline Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided
on such page of such Service, as determined by the Agent from time to time
for purposes of providing quotations of interest rates applicable to
deposits in Euro by reference to the Banking Federation of the European
Union Settlement Rates for deposits in Euro) at approximately 10:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08).
"Euro" means the lawful currency of the European Union as constituted
by the Treaty of Rome which established the European Community, as such
treaty may be amended from time to time and as referred to in the EMU
legislation.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Advance denominated in Dollars or any Committed
Currency other than Euro, the rate per annum (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate
Markets Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars or the applicable Committed Currency at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
Dollars or the applicable Committed Currency is offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising part of
such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period or, (ii) in the case of any Advance
denominated in Euros, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period. If
the Moneyline Telerate Markets Page 3750 (or any successor page) is
unavailable, the Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"Eurocurrency Rate Advance" means an Advance denominated in Dollars or
a Committed Currency that bears interest as provided in Section
2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.19(b).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Immaterial Subsidiary" means, at any time, any Subsidiary of the
Company (other than any Designated Subsidiary) having (a) Consolidated
assets with a value of less than 2% of the total value of the Consolidated
assets of the Company and its Subsidiaries, taken as a whole and (b)
Consolidated revenues of less than 2% of the Consolidated revenues of the
Company and its Subsidiaries, taken as a whole, in each case as of the end
of or for the most recently completed fiscal year of the Company.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section 2.18(b).
"Information Memorandum" means the information memorandum dated
October 31, 2006 used by the Agent in connection with the syndication of
the Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the Borrower requesting such Borrowing pursuant to
the provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by such Borrower pursuant to the provisions
below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as such Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) such Borrower may not select any Interest Period that ends after
the latest Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Borrowing shall be of
the same duration;
(c) in the case of any such Borrowing, such Borrower shall not be
entitled to select an Interest Period having duration of nine or
twelve months unless, by 2:00 P.M. (New York City time) on the
third Business Day prior to the first day of such Interest
Period, each Lender notifies the Agent that such Lender will be
providing funding for such Borrowing with such Interest Period
(the failure of any Lender to so respond by such time being
deemed for all purposes of this Agreement as an objection by such
Lender to the requested duration of such Interest Period);
provided that, if any or all of the Lenders object to the
requested duration of such Interest Period, the duration of the
Interest Period for such Borrowing shall be one, two, three or
six months, as specified by such Borrower in the applicable
Notice of Borrowing as the desired alternative to an Interest
Period of nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Issuance" with respect to any Letter of Credit means the issuance,
amendment, renewal or extension of such Letter of Credit.
"Issuing Bank" means an Initial Issuing Bank or any Eligible Assignee
to which a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable
Lending Office (which information shall be recorded by the Agent in the
Register), for so long as such Initial Issuing Bank or Eligible Assignee,
as the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Deposit Account" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the Agent
shall have sole dominion and control, upon terms as may be satisfactory to
the Agent and the Company.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means each Initial Lender, each Issuing Bank, each Assuming
Lender that shall become a party hereto pursuant to Section 2.18 or 2.19
and each Person that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Issuing
Bank, the obligation of such Issuing Bank to issue Letters of Credit for
the account of the Borrowers and their specified Subsidiaries in (a) the
Dollar amount set forth opposite the Issuing Bank's name on the signature
pages hereto under the caption "Letter of Credit Commitment" or (b) if such
Issuing Bank has entered into one or more Assignment and Acceptances, the
Dollar amount set forth for such Issuing Bank in the Register maintained by
the Agent pursuant to Section 9.07(d) as such Issuing Bank's "Letter of
Credit Commitment", in each case as such amount may be reduced prior to
such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
least of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time, (b) $200,000,000 and (c) the aggregate amount of
the Revolving Credit Commitments, as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole, (b) the rights and remedies of the
Agent or any Lender under this Agreement or any Note or (c) the ability of
any Borrower to perform its obligations under this Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Consenting Lender" has the meaning specified in Section 2.19(b).
"Note" means a promissory note of any Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.16 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances
made by such Lender to such Borrower.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56, signed into law October 26, 2001.
"Payment Office" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 30 days or which are being
contested in good faith by appropriate proceedings and as to which
appropriate reserves are being maintained in accordance with generally
accepted accounting practices; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or to
secure public or statutory obligations, performance bids, surety bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business; (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect the
use of such property for its present purposes; (e) judgment bonds so long
as the enforcement of such liens is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate
proceedings and as to which appropriate reserves are being maintained in
accordance with generally accepted accounting practices; (f) liens of a
lessor or sublessor with respect to property under an operating lease and
any restriction or encumbrance to which the interest or title of such
lessor or sublessor may be subject; and (g) so long as such liens do not
secure Debt, liens arising under standard custodial, bailee or depositary
arrangements (including deposit accounts with banks or other financial
institutions).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Company or, if any such rating agency shall have issued more than one
such rating, the lowest such rating issued by such rating agency. For
purposes of the foregoing, (a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage will be set in accordance
with Level 7 under the definition of "Applicable Margin" or "Applicable
Percentage", as the case may be; (c) if the ratings established by S&P and
Moody's shall fall within different levels, the Applicable Margin and the
Applicable Percentage shall be based upon the higher rating unless the such
ratings differ by two or more levels, in which case the applicable level
will be deemed to be one level above the lower of such levels; (d) if any
rating established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to the
Public Debt
Rating announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Ratable Share" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is
the amount of such Lender's Revolving Credit Commitment at such time (or,
if the Revolving Credit Commitments shall have been terminated pursuant to
Section 2.07 or 6.01, such Lender's Revolving Credit Commitment as in
effect immediately prior to such termination) and the denominator of which
is the aggregate amount of all Revolving Credit Commitments at such time
(or, if the Revolving Credit Commitments shall have been terminated
pursuant to Section 2.07 or 6.01, the aggregate amount of all Revolving
Credit Commitments as in effect immediately prior to such termination).
"Reference Banks" means Citibank, JPMorgan Chase Bank, N.A. and The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount (based on the
Equivalent in Dollars at such time) of the Advances owing to Lenders, or,
if no such principal amount is then outstanding, Lenders having at least a
majority in interest of the Revolving Credit Commitments.
"Revolving Credit Commitment" means as to any Lender (a) the Dollar
amount set forth opposite such Lender's name on the signature pages hereof
as such Lender's "Revolving Credit Commitment", (b) if such Lender has
become a Lender hereunder pursuant to an Assumption Agreement, the Dollar
amount set forth in such Assumption Agreement or (c) if such Lender has
entered into an Assignment and Acceptance, the Dollar amount set forth for
such Lender in the Register maintained by the Agent pursuant to Section
9.07(d), as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.18.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and no Person other than the Company and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Sub-Agent" means Citibank International plc.
"Subordinated Obligations" has the meaning specified in Section 7.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture or limited liability company of which (or in which) more than 50%
of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency) or (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture is
at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Termination Date" means the earlier of (a) November 21, 2011, subject
to the extension thereof pursuant to Section 2.19 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
provided, however, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.19
shall be the Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit for the account of the Borrowers or their specified Subsidiaries in
an amount equal to the excess of (a) the amount of its Letter of Credit
Commitment over (b) the aggregate Available Amount of all Letters of Credit
issued by such Issuing Bank.
"Unused Commitment" means, with respect to each Lender at any time,
(a) such Lender's Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Ratable Share of (A) the aggregate Available Amount of
all the Letters of Credit outstanding at such time and (B) the aggregate
principal amount of all Advances made by each Issuing Bank pursuant to
Section 2.03(c) that have not been ratably funded by such Lender and
outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date applicable to such
Lender in an aggregate amount (based in respect of any Advances to be
denominated in a Committed Currency by reference to the Equivalent thereof in
Dollars determined on the date of delivery of the applicable Notice of
Borrowing) not to exceed such Lender's Unused Commitment. Each Borrowing shall
be in an amount not less than the Borrowing Minimum or the Borrowing Multiple in
excess thereof and shall consist of Advances of the same Type and in the same
currency made on the same day by the Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Lender's
Commitment, the Borrowers may borrow under this Section 2.01(a), prepay pursuant
to Section 2.10 and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, in reliance upon the agreements of the
other Lenders set forth in this Agreement, to issue letters of credit
(each, a "Letter of Credit") denominated in Dollars for the account of any
Borrower and its specified Subsidiaries from time to time on any Business
Day during the period from the Effective Date until 30 days before the
latest Termination Date in an aggregate Available Amount (i) for all
Letters of Credit issued by each Issuing Bank not to exceed at any time the
lesser of (x) the Letter of Credit Facility at such time and (y) such
Issuing Bank's Letter of Credit Commitment at such time and (ii) for each
such Letter of Credit not to exceed an amount equal to the Unused
Commitments of the Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the applicable Borrower or the
beneficiary to require renewal) later than 10 Business Days before the
latest Termination Date. Within the limits referred to above, the Borrowers
may from time to time request the Issuance of Letters of Credit under this
Section 2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be
deemed to constitute a Letter of Credit issued hereunder, and each Lender
that is an issuer of such a Letter of Credit shall, for purposes of Section
2.03, be deemed to be an Issuing Bank for each such letter of credit,
provided than any renewal or replacement of any such letter of credit shall
be issued by an Issuing Bank pursuant to the terms of this Agreement.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.03(c), each Borrowing shall be made on notice, given not later than
(x) 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency
Rate Advances denominated in Dollars, (y) 4:00 P.M. (London time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in any Committed
Currency, or (z) 11:00 A.M. (New York City time) on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by any
Borrower to the Agent (and, in the case of a Borrowing consisting of
Eurocurrency Rate Advances, simultaneously to the Sub-Agent), which shall give
to each Lender prompt notice thereof by telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telecopier in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period and currency for each such Advance. Each Lender shall,
before 2:00 P.M. (New York City time) on the date of such Borrowing, in the case
of a Borrowing consisting of Advances denominated in Dollars, and before 11:00
A.M. (London time) on the date of such Borrowing, in the case of a Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the Agent at
the applicable Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the Borrowing at the Agent's address
referred to in Section 9.02 or at the applicable Payment Office, as the case may
be.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) no Borrower may select Eurocurrency Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than the Borrowing Minimum
or if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurocurrency Rate Advances may not be outstanding as part of more than six
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting the Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurocurrency
Rate Advances, the Borrower requesting the Borrowing shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
the Advance to be made by such Lender as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the time of any Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date
of such Borrowing
in accordance with subsection (a) of this Section 2.02 and the Agent may,
in reliance upon such assumption, make available to the Borrower requesting
the Borrowing on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such ratable portion available to
the Agent, such Lender and such Borrower severally agree to repay to the
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the higher of (A) the interest rate applicable at
the time to Advances comprising such Borrowing and (B) the cost of funds
incurred by the Agent in respect of such amount and (ii) in the case of
such Lender, (A) the Federal Funds Rate in the case of Advances denominated
in Dollars or (B) the cost of funds incurred by the Agent in respect of
such amount in the case of Advances denominated in Committed Currencies. If
such Lender shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Advance as part of such Borrowing
for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed Issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by any
Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt
notice thereof. Each such notice by a Borrower of Issuance of a Letter of Credit
(a "Notice of Issuance") shall be by telecopier or telephone, confirmed
immediately in writing, specifying therein the requested (A) date of such
Issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
such Letter of Credit shall be issued pursuant to such application and agreement
for letter of credit as such Issuing Bank and the applicable Borrower shall
agree for use in connection with such requested Letter of Credit (a "Letter of
Credit Agreement"). If the requested form of such Letter of Credit is acceptable
to such Issuing Bank in its reasonable discretion (it being understood that any
such form shall have only explicit documentary conditions to draw and shall not
include discretionary conditions), such Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Section 3.03, make such Letter of Credit
available to the applicable Borrower at its office referred to in Section 9.02
or as otherwise agreed with such Borrower in connection with such Issuance. In
the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Participations. By the Issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing or decreasing the amount
thereof) and without any further action on the part of the applicable
Issuing Bank or the Lenders, such Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Ratable Share
of the Available Amount of such Letter of Credit. Each Borrower hereby
agrees to each such participation. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally agrees to
pay to the Agent, for the account of such Issuing Bank, such Lender's
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date
made, or of any reimbursement payment required to be refunded to such
Borrower for any reason, which amount will be advanced, and deemed to be an
Advance to such Borrower hereunder, regardless of the satisfaction of the
conditions set forth in Section 3.03. Each Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments,
and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender further acknowledges and
agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender's Ratable Share of the
Available Amount of such Letter of Credit at each time such Lender's
Revolving Credit Commitment is amended pursuant to an assignment in
accordance with Section 9.07 or otherwise pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit which is not reimbursed by the
applicable Borrower on the date made shall constitute for all purposes of
this Agreement the making by any such Issuing Bank of an Advance, which
shall be a Base Rate Advance, in the amount of such draft, without regard
to whether the making of such an Advance would exceed such Issuing Bank's
Unused Commitment. Each Issuing Bank shall give prompt notice of each
drawing under any Letter of Credit issued by it to the applicable Borrower
and the Agent. Upon written demand by such Issuing Bank, with a copy of
such demand to the Agent and the applicable Borrower, each Lender shall pay
to the Agent such Lender's Ratable Share of such outstanding Advance
pursuant to Section 2.03(b). Each Lender acknowledges and agrees that its
obligation to make Advances pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Promptly after receipt thereof, the
Agent shall transfer such funds to such Issuing Bank. Each Lender agrees to
fund its Ratable Share of an outstanding Advance on (i) the Business Day on
which demand therefor is made by such Issuing Bank, provided that notice of
such demand is given not later than 11:00 A.M. (New York City time) on such
Business Day, or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. If and to the extent that
any Lender shall not have so made the amount of such Advance available to
the Agent, such Lender agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand
by any such Issuing Bank until the date such amount is paid to the Agent,
at the Federal Funds Rate for its account or the account of such Issuing
Bank, as applicable. If such Lender shall pay to the Agent such amount for
the account of any such Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute an Advance made by such
Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Advance made by such Issuing Bank shall
be reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Agent and each Lender (with a copy to the Company) on the first
Business Day of each month a written report summarizing Issuance and
expiration dates of Letters of Credit issued by such Issuing Bank during
the preceding month and drawings during such month under all Letters of
Credit and (B) to the Agent and each Lender (with a copy to the Company) on
the first Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on
such date, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Revolving Credit Commitment from the Effective Date in the
case of each Initial Lender and from the effective date specified in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination
Date applicable to such Lender at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December, commencing December
31, 2006, and on the Termination Date.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent
for the account of each Lender a commission on such Lender's Ratable Share
of the average daily aggregate Available Amount of all Letters of Credit
issued for the account of such Borrower and outstanding from time to time
at a rate per annum equal to the Applicable Margin for Eurocurrency Rate
Advances in effect from time to time during such calendar quarter,
payable in arrears quarterly on the last day of each March, June, September
and December, commencing with the quarter ended December 31, 2006, and on
the Termination Date applicable to such Lender; provided that the
Applicable Margin shall be 1% above the Applicable Margin in effect upon
the occurrence and during the continuation of an Event of Default if such
Borrower is required to pay default interest pursuant to Section 2.07(b).
(ii) Each Borrower shall pay to each Issuing Bank, for its own
account, a fronting fee equal to 0.125% per annum of the Available
Amount of each Letter of Credit issued by such Issuing Bank, payable
in arrears quarterly on the last day of each March, June, September
and December, and such other commissions, issuance fees, transfer fees
and other fees and charges in connection with the Issuance or
administration of each Letter of Credit as such Borrower and such
Issuing Bank shall agree.
(c) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company
and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments. The
Company shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or permanently reduce ratably in part the Unused
Commitments or the Unissued Letter of Credit Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings. (a) Each
Borrower shall repay to the Agent for the ratable account of the Lenders on each
applicable Termination Date the aggregate principal amount of the Advances made
to such Borrower then outstanding.
(b) The obligations of each Borrower under any Letter of Credit
Agreement and any other agreement or instrument relating to any Letter of
Credit issued for the account of such Borrower shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances (it being understood that any such payment by such
Borrower is without prejudice to, and does not constitute a waiver of, any
rights such Borrower might have or might acquire as a result of the payment
by any Lender of any draft or the reimbursement by such Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of such Borrower in
respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other right
that such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank,
the Agent, any Lender or any other Person, whether in connection with
the transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of the
obligations of such Borrower in respect of the L/C Related Documents;
or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, such Borrower or a guarantor.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December during
such periods and on the date such Base Rate Advance shall be Converted
or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee, if any, in effect from time to time,
payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Agent may with the consent, and shall upon the
request, of the Required Lenders, require the Borrowers to pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such Advance pursuant
to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted
by law, the amount of any interest, fee or other amount payable hereunder
that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above the rate per annum required to be paid on
Base Rate Advances pursuant to clause (a)(i) above; provided, however, that
following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees,
if requested by the Agent, to furnish to the Agent timely information for the
purpose of determining each Eurocurrency Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching
deposits in the London inter-bank market at or about 11:00 A.M. (London
time) on the second Business Day before the making of a Borrowing in
sufficient amounts to fund their respective Advances as a part of such
Borrowing during its Interest Period or (ii) the Eurocurrency Rate for any
Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Agent shall
forthwith so notify the Company and the Lenders, whereupon (A) the Borrower
of such Eurocurrency Advances will, on the last day of the then existing
Interest Period therefor, (1) if such Eurocurrency Rate Advances are
denominated in Dollars, either (x) prepay such Advances or (y) Convert such
Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances
are denominated in any Committed Currency, either (x) prepay such Advances
or
(y) exchange such Advances into an Equivalent amount of Dollars and Convert
such Advances into Base Rate Advances and (B) the obligation of the Lenders
to make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent
will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in
Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Committed Currency, be exchanged for an
Equivalent amount of Dollars and Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than the Borrowing Minimum,
such Advances shall automatically (i) if such Eurocurrency Rate Advances
are denominated in Dollars, Convert into Base Rate Advances and (ii) if
such Eurocurrency Rate Advances are denominated in a Committed Currency, be
exchanged for an Equivalent amount of Dollars and Convert into Base Rate
Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, (A) if such Eurocurrency
Rate Advances are denominated in Dollars, be Converted into Base Rate
Advances and (B) if such Eurocurrency Rate Advances are denominated in any
Committed Currency, be exchanged for an Equivalent amount of Dollars and be
Converted into Base Rate Advances and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for
determining the Eurocurrency Rate for any Eurocurrency Rate Advances after
the Agent has requested such information,
(i) the Agent shall forthwith notify the applicable Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, Convert into a Base Rate Advance
and (B) if such Eurocurrency Rate Advance is denominated in any
Committed Currency, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be
Converted into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Advances into Eurocurrency Rate Advances shall
be suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower of any Advance
may on any Business Day, upon notice given to the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Advances denominated in Dollars of one Type comprising the same
Borrowing into Advances denominated in Dollars of the other Type; provided,
however, that any Conversion of Eurocurrency Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to
be Converted, and
(iii) if such Conversion is into Eurocurrency Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower giving such notice.
SECTION 2.10. Prepayments of Advances. (a) Optional. Each Borrower may,
upon notice at least two Business Days' prior to the date of such prepayment, in
the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York
City time) on the date of such prepayment, in the case of Base Rate Advances, to
the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given, such Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of not
less than the Borrowing Minimum or a Borrowing Multiple in excess thereof and
(y) in the event of any such prepayment of a Eurocurrency Rate Advance, such
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Company
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus the aggregate Available
Amount of all Letters of Credit then outstanding plus (B) the Equivalent in
Dollars (determined on the third Business Day prior to such interest
payment date) of the aggregate principal amount of all Advances denominated
in Committed Currencies then outstanding exceeds 103% of the aggregate
Commitments of the Lenders on such date, the Borrowers shall, as soon as
practicable and in any event within two Business Days after receipt of such
notice, prepay the outstanding principal amount of any Advances owing by
the Borrowers in an aggregate amount sufficient to reduce such sum to an
amount not to exceed 100% of the aggregate Commitments of the Lenders on
such date.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on
the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which the Borrowers shall
be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 9.04(c). The Agent shall give prompt notice of any prepayment
required under this Section 2.10(b) to the Company and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurocurrency Rate Advances or of
agreeing to issue or of issuing or maintaining or participating in Letters of
Credit (excluding for purposes of this Section 2.11 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern)
and (ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Applicable Lending Office or
any political subdivision thereof), then the Company shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided, however, that before making any
such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid the need
for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Company
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount
of such capital is increased by or based upon the existence of such
Lender's commitment to lend or to issue or participate in Letters of Credit
hereunder and other commitments of such type or the Issuance or maintenance
of or participation in the Letters of Credit (or similar contingent
obligations),
then, upon demand by such Lender (with a copy of such demand to the Agent),
the Company shall pay to the Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend or to issue or participate in Letters of Credit
hereunder or to the Issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the
Company and the Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or any Committed
Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or any
Committed Currency hereunder, (a) each Eurocurrency Rate Advance will
automatically, upon such demand (i) if such Eurocurrency Rate Advance is
denominated in Dollars, be Converted into a Base Rate Advance and (ii) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be exchanged
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or to
Convert Advances into Eurocurrency Rate Advances shall be suspended until the
Agent shall notify the Company and the Lenders that the circumstances causing
such suspension no longer exist; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurocurrency Lending Office if the making of such designation would allow such
Lender or its Eurocurrency Lending Office to continue to perform its obligations
to make Eurocurrency Rate Advances or to continue to fund or maintain
Eurocurrency Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall make each
payment hereunder (except with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Committed Currency), not later
than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent
at the applicable Agent's Account in same day funds and irrespective of any
right of counterclaim or set-off. Each Borrower shall make each payment
hereunder with respect to principal of, interest on, and other amounts relating
to, Advances denominated in a Committed Currency, not later than 11:00 A.M. (at
the Payment Office for such Committed Currency) on the day when due in such
Committed Currency to the Agent, by deposit of such funds to the applicable
Agent's Account in same day funds and irrespective of any right of counterclaim
or set-off. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, facility fees or
commissions ratably (other than amounts payable pursuant to Section 2.03, 2.11,
2.14 or 9.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of a
Commitment Increase pursuant to Section 2.18 or an extension of the Termination
Date pursuant to Section 2.19, and upon the Agent's receipt of such Lender's
Assumption Agreement and recording of the information contained therein in the
Register, from and after the applicable Increase Date or Extension Date, as the
case may be, the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, all
computations of interest based on the Eurocurrency Rate
or the Federal Funds Rate and of facility fees and Letter of Credit commissions
shall be made by the Agent on the basis of a year of 360 days (or, in each case
of Advances denominated in Committed Currencies where market practice differs,
in accordance with market practice), in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, facility fees or commissions are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, facility fee or commission,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurocurrency Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from any Borrower prior to
the date on which any payment is due to the Lenders hereunder that such Borrower
will not make such payment in full, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Committed
Currencies.
(f) To the extent that the Agent receives funds for application to the
amounts owing by any Borrower under or in respect of this Agreement or any Note
in currencies other than the currency or currencies required to enable the Agent
to distribute funds to the Lenders in accordance with the terms of this Section
2.13, the Agent shall be entitled to convert or exchange such funds into Dollars
or into a Committed Currency or from Dollars to a Committed Currency or from a
Committed Currency to Dollars, as the case may be, to the extent necessary to
enable the Agent to distribute such funds in accordance with the terms of this
Section 2.13; provided that each Borrower and each of the Lenders hereby agree
that the Agent shall not be liable or responsible for any loss, cost or expense
suffered by such Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.13(f) or as a result
of the failure of the Agent to effect any such conversion or exchange; and
provided further that each Borrower agrees to indemnify the Agent and each
Lender, and hold the Agent and each Lender harmless, for any and all losses,
costs and expenses incurred by the Agent or any Lender for any conversion or
exchange of currencies (or the failure to convert or exchange any currencies) in
accordance with this Section 2.13(f).
SECTION 2.14. Taxes. (a) Any and all payments by each Borrower to or
for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance
with Section 2.13 or the applicable provisions of such other documents,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the
laws of which such Lender or the Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender, taxes
imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
in respect of payments hereunder or under the Notes being hereinafter
referred to as "Taxes"). If any Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note
or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the Agent
(as the case may be) receives an amount equal to the sum it would have
received had no
such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes any
other documents to be delivered hereunder or from the execution, delivery
or registration of, performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder
(hereinafter referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted by
any jurisdiction on amounts payable under this Section 2.14) imposed on or
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment
to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case
of any payment hereunder or under the Notes or any other documents to be
delivered hereunder by or on behalf of such Borrower through an account or
branch outside the United States or by or on behalf of such Borrower by a
payor that is not a United States person, if such Borrower determines that
no Taxes are payable in respect thereof, such Borrower shall furnish, or
shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is
exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter as reasonably requested in writing by the Company (but only so
long as such Lender remains lawfully able to do so), shall provide each of
the Agent and the Company with two original Internal Revenue Service Forms
W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed
by the Internal Revenue Service, certifying that such Lender is exempt from
or entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes. If the form provided by a Lender
at the time such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes unless and until
such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to
which a Lender assignee becomes a party to this Agreement, the Lender
assignor was entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such date, then, to
such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to
the Lender assignee on such date. If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service Form W-8BEN or W-8ECI, that
the Lender reasonably considers to be confidential, the Lender shall give
notice thereof to the Company and shall not be obligated to include in such
form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Company with the appropriate form, certificate or other
document described in Section 2.14(e) (other than if such failure is due to
a change in law, or in the interpretation or application thereof, occurring
subsequent to the date on which a form, certificate or other document
originally was required to be provided, or if such form, certificate or
other document otherwise is not required under subsection (e) above), such
Lender shall not be entitled to indemnification under Section 2.14(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided,
however, that should a Lender become subject to Taxes because of its
failure to deliver a form, certificate or other document required
hereunder, the Company shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurocurrency Lending Office if the making of such
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than as
payment of an Advance made by an Issuing Bank pursuant to the first sentence of
Section 2.03(c) or pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender,
in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto,
(ii) the terms of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iv) the amount of any sum
received by the Agent from such Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and
payable from each Borrower to, in the case of the Register, each Lender
and, in the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the failure of
the Agent or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of any Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of such Borrower and its Subsidiaries, including
commercial paper backstop.
SECTION 2.18. Increase in the Aggregate Commitments. (a) The Company may,
at any time but in any event not more than twice in any calendar year prior to
the latest Termination Date, by notice to the Agent, request that the aggregate
amount of the Commitment be increased in minimum increments of $25,000,000 (each
a "Commitment Increase") to be effective as of a date that is at least 90 days
prior to the latest scheduled Termination Date then in effect (the "Increase
Date") as specified in the related notice to the Agent; provided, however that
(i) in no event shall the aggregate amount of the Commitments at any time exceed
$1,250,000,000 and (ii) on the date of any request by the Company for a
Commitment Increase and on the related Increase Date the applicable conditions
set forth in Section 3.03 shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by the
Company for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in
the Commitment Increase must commit to an increase in the amount of their
respective Commitments (the "Commitment Date"). Each Lender that is willing
to participate in such requested Commitment Increase (each an "Increasing
Lender") shall, in its sole discretion, give written notice to the Agent on
or prior to the Commitment Date of the amount by which it is willing to
increase its Commitment. If the Lenders notify the Agent that they are
willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed
between the Company and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify
the Company as to the amount, if any, by which the Lenders are willing to
participate in the requested Commitment Increase. If the aggregate amount
by which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Company may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment
Increase that has not been committed to by the Lenders as of the applicable
Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in a minimum amount of $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.18(b) (each such Eligible Assignee, an "Assuming Lender") shall
become a Lender party to this Agreement as of such Increase Date and the
Commitment of each Increasing Lender for such requested Commitment Increase
shall be so increased by such amount (or by the amount allocated to such
Lender pursuant to the last sentence of Section 2.18(b)) as of such
Increase Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors
of the Company or the Executive Committee of such Board approving the
Commitment Increase and the corresponding modifications to this
Agreement and (B) an opinion of counsel for the Company (which may be
in-house counsel), in substantially the form of Exhibit E hereto;
(ii) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Company and the Agent (each
an "Assumption Agreement"), duly executed by such Eligible Assignee,
the Agent and the Company; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Company
and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Company, on or before 1:00 P.M. (New York City time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
Increase Date, make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, in the case of such
Assuming
Lender, an amount equal to such Assuming Lender's ratable portion of the
Borrowings then outstanding (calculated based on its Revolving Credit Commitment
as a percentage of the aggregate Revolving Credit Commitments outstanding after
giving effect to the relevant Commitment Increase) and, in the case of such
Increasing Lender, an amount equal to the excess of (i) such Increasing Lender's
ratable portion of the Borrowings then outstanding (calculated based on its
Revolving Credit Commitment as a percentage of the aggregate Revolving Credit
Commitments outstanding after giving effect to the relevant Commitment Increase)
over (ii) such Increasing Lender's ratable portion of the Borrowings then
outstanding (calculated based on its Revolving Credit Commitment (without giving
effect to the relevant Commitment Increase) as a percentage of the aggregate
Revolving Credit Commitments (without giving effect to the relevant Commitment
Increase). After the Agent's receipt of such funds from each such Increasing
Lender and each such Assuming Lender, the Agent will promptly thereafter cause
to be distributed like funds to the other Lenders for the account of their
respective Applicable Lending Offices in an amount to each other Lender such
that the aggregate amount of the outstanding Advances owing to each Lender after
giving effect to such distribution equals such Lender's ratable portion of the
Borrowings then outstanding (calculated based on its Revolving Credit Commitment
as a percentage of the aggregate Revolving Credit Commitments outstanding after
giving effect to the relevant Commitment Increase), and the Company shall pay
such Lender any amounts due pursuant to Section 9.04.
SECTION 2.19. Extension of Termination Date. (a) At least 30 days but not
more than 45 days prior to either or both of the first and second anniversaries
of the Effective Date, the Borrower, by written notice to the Agent, may request
an extension of the Termination Date in effect at such time by one year from its
then scheduled expiration. The Agent shall promptly notify each Lender of such
request, and each Lender shall in turn, in its sole discretion, not later than
20 days prior to the applicable anniversary date, notify the Borrower and the
Agent in writing as to whether such Lender will consent to such extension. If
any Lender shall fail to notify the Agent and the Borrower in writing of its
consent to any such request for extension of the Termination Date at least 20
days prior to the applicable anniversary date, such Lender shall be deemed to be
a Non-Consenting Lender with respect to such request. The Agent shall notify the
Borrower not later than 15 days prior to the applicable anniversary date of the
decision of the Lenders regarding the Borrower's request for an extension of the
Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.19, the Termination Date
in effect at such time shall, effective as at the applicable anniversary
date (the "Extension Date"), be extended for one year; provided that on
each Extension Date the applicable conditions set forth in Section 3.03
shall be satisfied. If less than all of the Lenders consent in writing to
any such request in accordance with subsection (a) of this Section 2.19,
the Termination Date in effect at such time shall, effective as at the
applicable Extension Date and subject to subsection (d) of this Section
2.19, be extended as to those Lenders that so consented (each a "Consenting
Lender") but shall not be extended as to any other Lender (each a
"Non-Consenting Lender"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.19 and the Commitment
of such Lender is not assumed in accordance with subsection (c) of this
Section 2.19 on or prior to the applicable Extension Date, the Commitment
of such Non-Consenting Lender shall automatically terminate in whole on
such unextended Termination Date without any further notice or other action
by the Borrower, such Lender or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.11, 2.14 and 9.04, and its
obligations under Section 8.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to agree to any
request made by the Borrower for any requested extension of the Termination
Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.19, the Agent shall promptly
so notify the Consenting Lenders, and each Consenting Lender may, in its
sole discretion, give written notice to the Agent not later than 10 days
prior to the Extension Date of the amount of the Non-Consenting Lenders'
Commitments for which it is willing to accept an assignment. If the
Consenting Lenders notify the Agent that they are willing to accept
assignments of Commitments in an aggregate amount that exceeds the amount
of the Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments
in such amounts as are agreed between the Borrower and the Agent. If after
giving effect to the assignments of Commitments described above there
remains any Commitments of Non-Consenting Lenders, the Borrower may arrange
for one or more Consenting Lenders or other Eligible Assignees as Assuming
Lenders to assume, effective as of the Extension Date, any Non-Consenting
Lender's Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment
of any such Assuming Lender as a result of such substitution shall in no
event be less than $10,000,000 unless the amount of the Commitment of such
Non-Consenting Lender is less than $10,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid
to such Non-Consenting Lender (A) the aggregate principal amount of,
and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees
owing to such Non-Consenting Lender as of the effective date of such
assignment;
(ii) all additional costs reimbursements, expense reimbursements
and indemnities payable to such Non-Consenting Lender, and all other
accrued and unpaid amounts owing to such Non-Consenting Lender
hereunder, as of the effective date of such assignment shall have been
paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections
2.11, 2.14 and 9.04, and its obligations under Section 8.05, shall survive
such substitution as to matters occurring prior to the date of
substitution. At least three Business Days prior to any Extension Date, (A)
each such Assuming Lender, if any, shall have delivered to the Borrower and
the Agent an Assumption Agreement, duly executed by such Assuming Lender,
such Non-Consenting Lender, the Borrower and the Agent, (B) any such
Consenting Lender shall have delivered confirmation in writing satisfactory
to the Borrower and the Agent as to the increase in the amount of its
Commitment and (C) each Non-Consenting Lender being replaced pursuant to
this Section 2.19 shall have delivered to the Agent any Note or Notes held
by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i), (ii) and (iii) of the immediately
preceding sentence, each such Consenting Lender or Assuming Lender, as of
the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the
other Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions pursuant
to subsection (c) of this Section 2.19) Lenders having Commitments equal to
at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later
than three Business Days prior to such Extension Date, the Agent shall so
notify the Borrower, and, subject to the satisfaction of the applicable
conditions in Section 3.03, the Termination Date then in effect shall be
extended for the additional one-year period as described in subsection (a)
of this Section 2.19, and all references in this Agreement, and in the
Notes, if any, to the "Termination Date" shall, with respect to each
Consenting Lender and each Assuming Lender for such Extension Date, refer
to the Termination Date as so extended. Promptly following each Extension
Date, the Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in
effect immediately prior thereto and shall thereupon record in the Register
the relevant information with respect to each such Consenting Lender and
each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) Except as disclosed in filings made by the Company with the
Securities and Exchange Commission, press releases and other public
disclosures prior to the Effective Date, there shall have occurred no
Material Adverse Change since December 31, 2005.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or, to
the knowledge of the Company, threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect other than the matters described on Schedule 3.01(b) hereto
(the "Disclosed Litigation") or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(d) The Company shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued and invoiced fees and
expenses of the Agent and the Lenders (including the accrued and invoiced
fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company, dated the Effective
Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(g) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested
by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers
of the Company authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(iv) A favorable opinion of William D. Eggers, Senior Vice
President and General Counsel of the Company, substantially in the
form of Exhibit E hereto.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, in form and substance satisfactory to the Agent.
SECTION 3.02. Initial Advance to Each Designated Subsidiary. The obligation
of each Lender to make an initial Advance to each Designated Subsidiary
following any designation of such Designated Subsidiary as a Borrower hereunder
pursuant to Section 9.08 is subject to the Agent's receipt on or before the date
of such initial Advance of each of the following, in form and substance
satisfactory to the Agent and dated such date, and (except for the Notes) in
sufficient copies for each Lender:
(a) The Notes of such Designated Subsidiary to the order of the
Lenders to the extent requested by any Lender pursuant to Section 2.16.
(b) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the Notes
to be delivered by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement.
(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such Designated
Subsidiary authorized to sign its Designation Agreement and the Notes to be
delivered by it and the other documents to be delivered by it hereunder.
(d) A certificate signed by a duly authorized officer of the Company,
certifying that such Designated Subsidiary has obtained all governmental
and third party authorizations, consents, approvals (including exchange
control approvals) and licenses required under applicable laws and
regulations necessary for such Designated Subsidiary to execute and deliver
its Designation Agreement and the Notes to be delivered by it and to
perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) A favorable opinion of counsel (which may be in-house counsel) to
such Designated Subsidiary substantially in the form of Exhibit E hereto,
and as to such other matters as any Lender through the Agent may reasonably
request.
(g) Such other approvals, opinions or documents as any Lender through
the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and
Commitment Increase. The obligation of each Lender to make an Advance (other
than an Advance made by any Issuing Bank or any Lender pursuant to Section
2.03(c)) on the occasion of each Borrowing, the obligation of each Issuing Bank
to issue a Letter of Credit, each Commitment Increase and each extension of
Commitments pursuant to Section 2.19 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing, such Issuance, the applicable Increase Date or the applicable
Extension Date (as the case may be) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing, Notice of Issuance,
request for Commitment Increase or request for extension of Commitments and the
acceptance by any Borrower of the proceeds of such Borrowing or such Issuance or
such Increase Date or Extension Date shall constitute a representation and
warranty by such Borrower that on the date of such Borrowing, such Issuance,
such Increase Date or such Extension Date such statements are true):
(a) the representations and warranties contained in Section 4.01
(except, in the case of Borrowings and Issuances, the representations set
forth in the last sentence of subsection (e) thereof, in subsection (f)(i)
thereof and in subsection (n) thereof) are correct on and as of such date,
before and after giving effect to such Borrowing, such Issuance, such
Commitment Increase or such extension of Commitments and to the application
of the proceeds therefrom, as though made on and as of such date, and
additionally, if such Borrowing or Issuance shall have been requested by a
Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Agreement are correct on
and as of the date of such Borrowing or such Issuance, before and after
giving effect to such
Borrowing, such Issuance such Commitment Increase or such extension of
Commitments and to the application of the proceeds therefrom, as though
made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Borrowing, such Issuance, such Commitment Increase or such extension of
Commitments or from the application of the proceeds therefrom, that
constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date or the date
of the initial Advance to the applicable Designated Subsidiary, as the case may
be, specifying its objection thereto. The Agent shall promptly notify the
Lenders and the Company of the occurrence of the Effective Date and the Lenders
of each date of initial Advance to a Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Company's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Company of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by
it when delivered hereunder will have been, duly executed and delivered by
the Company. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their respective terms,
except as enforceability may be affected by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity, whether enforcement is sought in a proceeding in equity or at law.
(e) The Consolidated balance sheet of the Company and its Subsidiaries
as at December 31, 2005, and the related Consolidated statements of income
and cash flows of the Company and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at September 30, 2006, and
the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of the Borrower, copies of which
have been furnished to each Lender, fairly present, in all material
respects, subject, in the case of said balance sheet as at September 30,
2006, and said statements of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial
condition of the Company and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Company and its Subsidiaries
for the periods ended on such dates all in accordance with generally
accepted accounting principles consistently applied. Since December 31,
2005, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Company,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse
Effect (other than the Disclosed Litigation) or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Company is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) The Company is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) No ERISA Event exists or is reasonably expected to occur with
respect to any Plan that could reasonably be expected to result in a
material liability to the Company.
(j) The operations and properties of the Company and its Subsidiaries
taken as a whole comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved or is
being contested in good faith by appropriate proceedings, and no
circumstances exist that would be reasonably likely to form the basis of an
Environmental Action against the Company or any of its Subsidiaries or any
of their properties that could reasonably be expected to have a Material
Adverse Effect.
(k) With such exceptions as are not material, the Company has filed,
has caused to be filed or has been included in all tax returns (federal,
State, local and foreign) required to be filed and has paid all taxes shown
thereon to be due, together with applicable interest and penalties.
(l) The Company has title to its properties sufficient for the conduct
of business, and none of such property is subject to any Lien except for
Liens permitted by Section 5.02(a) hereof.
(m) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of the Company to the Agent or
any Lender in connection with the negotiation and syndication of this
Agreement or pursuant to the terms of this Agreement, taken as a whole,
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, when taken as a whole, not
misleading; provided that with respect to projected financial information,
the Company represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time (it
being understood that such projected financial information is subject to
significant uncertainties and contingencies, many of which are beyond the
control of the Company and that no assurances can be given that such
projections will be realized).
(n) The Borrowers and their respective Subsidiaries, taken as a whole,
are Solvent.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA, Environmental Laws and the Patriot Act except in each case to the
extent that the failure to so comply would not reasonably be expected to
have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Company nor any of its Subsidiaries shall be required to pay or discharge
(A) any taxes, assessments, reassessments, charges, levies or claims that,
either individually or in the aggregate, do not exceed $5,000,000 (or the
equivalent thereof in one or more foreign currencies) at any time or (B)
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries (other than Immaterial Subsidiaries) to maintain, insurance
with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general
areas in which the Company or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that the Company and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided further that
neither the Company nor any of its Subsidiaries shall be required to
preserve any right or franchise or the existence of any Subsidiary if the
preservation thereof is no longer material to the conduct of the business
of the Company and its Subsidiaries, taken as a whole.
(e) Visitation Rights. At any reasonable time, upon reasonable notice
and from time to time, permit the Agent or any of the Lenders or any agents
or representatives thereof (at their sole cost and expense), to examine and
make copies of and abstracts from the records and books of account of, and
visit the properties of, the Company and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Company and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account of the Company and each such
Subsidiary in accordance with, and to the extent required by, generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except to the extent
that the failure to do so would not reasonably be expected to have a
Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Company or such Subsidiary in any
material respect than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate, provided that the foregoing
shall not prohibit transactions between or among the Company and its
Subsidiaries not involving any other Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Company as
having been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer of the
Company as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any change
in generally accepted accounting principles used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the annual audit
report for such year for the Company and its Subsidiaries, containing
the Consolidated balance sheet of the Company and its Subsidiaries as
of the end of such fiscal year and Consolidated statements of income
and cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion unqualified as to scope
and going concern by PricewaterhouseCoopers LLP or other independent
public accountants of recognized national standing selected by the
Company and certificates of the chief financial officer of the Company
as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Section 5.03, provided that in the event of any change in
generally accepted accounting principles used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
(iii) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Company
setting forth details of such Default and the action that the Company
has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
quarterly and annual reports and proxy solicitations that the Company
sends to its public securityholders, and copies of all reports on Form
8-K (or their equivalents) and registration statements for the public
offering of securities that the Company or any Subsidiary files with
the Securities and Exchange Commission (the "SEC") or any national
securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
Financial reports required to be delivered pursuant to clauses
(i), (ii) and (iv) above shall be deemed to have been delivered on the
date on which such report is posted on the SEC's website at
www.sec.gov, and such posting shall be deemed to satisfy the financial
reporting requirements of clauses (i), (ii) and (iv) above, provided,
that, in each instance the Company shall provide all other reports and
certificates required to be delivered under this Section 5.01(i) in
the manner set forth in Section 9.02.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any assets acquired or held
by the Company or any Subsidiary to secure the purchase price of such
assets or to secure Debt incurred solely for the purpose of financing
the acquisition, improvement or construction of such assets (including
any Liens placed on such assets within 180 days after the latest of
the acquisition, completion of construction or improvement of such
assets), or Liens existing on such assets at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition of
such assets) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any assets of any character other
than the assets being acquired, improved or constructed and no such
extension, renewal or replacement shall extend to or cover any assets
not theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount of the
indebtedness secured by the Liens referred to in this clause (ii)
shall not exceed $$100,000,000 at any time outstanding,
(iii) the Liens existing on the Effective Date securing Debt
outstanding on the Effective Date in an aggregate amount not exceeding
$50,000,000,
(iv) Liens on property of a Person existing at the time such
Person is acquired by, merged into or consolidated with the Company or
any Subsidiary of the Company or becomes a Subsidiary of the Company;
provided that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Company or such Subsidiary or acquired by the Company or such
Subsidiary,
(v) Liens securing Debt owing by any Subsidiary of the Company to
the Company,
(vi) Liens securing Debt of Subsidiaries of the Company organized
under the laws of any country other than the United States of America
or a State thereof,
(vii) Liens created under any capital lease on the assets that
are the subject of such lease,
(viii) Liens arising out of the L/C Cash Deposit Account or any
Liens securing obligations under this Agreement,
(ix) other Liens securing Debt in an aggregate principal amount
not to exceed the amount specified therefor in Section 5.02(d)(viii)
at any time outstanding,
(x) assignments of the right to receive income and Liens that
arise in connection with limited recourse or non-recourse sales,
transfers or other dispositions of accounts receivable (together with
related rights of collection or credit enhancements thereof) in an
aggregate amount not to exceed $500,000,000 at any time outstanding,
and
(xi) the replacement, extension or renewal of any Lien permitted
by clause (iii) or (iv) above upon or in the same property theretofore
subject thereto, so long as the principal amount
of Debt secured by any such Lien is not increased in connection with
any such replacement, extension or renewal of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries (other than its Immaterial Subsidiaries) to do so, except that
(i) any Subsidiary of the Company may merge or consolidate with or into, or
dispose of assets to, any other Subsidiary of the Company, (ii) any
Subsidiary of the Company may merge into or dispose of assets to the
Company and (iii) the Company may merge with any other Person so long as
the Company is the surviving corporation, provided, in each case, that no
Default shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed to the Company or to a wholly owned Subsidiary of
the Company or Debt owed under this Agreement,
(ii) Debt existing on the Effective Date that is described on
Schedule 5.02(d) hereto or the principal or face amount of which does
not exceed $10,000,000 individually or $25,000,000 in the aggregate
(the "Existing Debt"), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing Debt,
provided that the principal amount of such Existing Debt shall not be
increased above the principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing, as a result of or
in connection with such extension, refunding or refinancing,
(iii) Debt incurred by Subsidiaries of the Company organized
under the laws of any country other than the United States of America
or a State thereof aggregating for all such Subsidiaries of not more
than $500,000,000 at any one time outstanding,
(iv) guarantees of Debt of the Company or any other Subsidiary of
the Company,
(v) guarantees of Debt of any Person (other than the Company or
any of its Subsidiaries), provided that the aggregate principal amount
of such Debt shall not exceed $25,000,000 at any one time outstanding,
(vi) obligations of any Subsidiary of the Company organized under
the laws of any country other than the United States of America or a
State thereof under any Hedge Agreements entered into in the ordinary
course of business to protect the Company and its Subsidiaries against
fluctuations in interest or exchange rates;
(vii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
and
(viii) other Debt aggregating for all of the Company's
Subsidiaries, together with Debt secured by Liens permitted under
Section 5.02(a)(ix), an amount not to exceed $150,000,000 at any one
time outstanding.
(e) Change in Nature of Business. Make any material change in the nature of
the business of the Company and its Subsidiaries, taken as a whole, as carried
on at the date hereof.
(f) Dividends, Etc. Declare any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of capital stock of the Company, or purchase, redeem or
otherwise acquire for value (or permit any of its Subsidiaries to do so) any
shares of any class of capital stock of the Company or any warrants, rights or
options to acquire any such shares, now or hereafter outstanding, unless no
Default under Section 5.03 or Event of Default under Section 6.01(a) shall have
occurred and be continuing at the time of any such action described above or
would result therefrom.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will:
(a) Leverage Ratio. Maintain, as at the end of each fiscal quarter, a ratio
of Consolidated Debt for Borrowed Money to Consolidated Total Capital of not
greater than 0.50 to 1.00.
(b) Interest Coverage Ratio. Maintain, as at the end of each fiscal
quarter, a ratio of Consolidated Adjusted EBITDA for the period of four fiscal
quarters then ended of the Company and its Subsidiaries to Consolidated Interest
Expense of the Company and its Subsidiaries during such period of not less than
3.50:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Company or any other Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the Company or any other
Borrower shall fail to pay any interest on any Advance or make any other payment
of fees or other amounts payable under this Agreement or any Note within five
days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by any
Borrower (or any of its officers) in connection with this Agreement or by any
Designated Subsidiary in the Designation Agreement pursuant to which such
Designated Subsidiary became a Borrower hereunder shall prove to have been
incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d), (e), (h) or (i), 5.02 or 5.03, or (ii)
the Company shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Company by the Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any Debt that is outstanding in a principal or net
amount of at least $50,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Company or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) The Company or any of its Subsidiaries (other than any of its
Immaterial Subsidiaries) shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Company or any of its Subsidiaries (other
than any of its Immaterial Subsidiaries) seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Company or any of its Subsidiaries (other than any of its Immaterial
Subsidiaries) shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of $50,000,000
in the aggregate shall be rendered against the Company or any of its
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of Default under
this Section 6.01(f) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A-" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order; or
(g) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Company (or other securities
convertible into such Voting Stock) representing 30% or more of the combined
voting power of all Voting Stock of the Company; or (ii) during any period of up
to 24 consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Company shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Company (except to the
extent that individuals who at the beginning of such 24-month period were
replaced by individuals (x) elected by a majority of the remaining members of
the board of directors of the Company or (y) nominated for election by a
majority of the remaining members of the board of directors of the Company and
thereafter elected as directors by the shareholders of the Borrower); or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur liability in excess of $75,000,000 in the aggregate
as a result of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Company or any of its
ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(j) so long as any Subsidiary of the Company is a Designated Subsidiary,
any provision of Article VII shall for any reason cease to be valid and binding
on or enforceable against the Company, or the Company shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the Advances, all interest
thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Company or any other Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit shall automatically be terminated and (B) the Advances, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Agent may with
the consent, or shall at the request, of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrowers to, and forthwith upon such demand the Borrowers
will, (a) pay to the Agent on behalf of the Lenders in same day funds at the
Agent's office designated in such demand, for deposit in the L/C Cash Deposit
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding or (b) make such other arrangements in respect of the
outstanding Letters of Credit as shall be acceptable to the Required Lenders and
not more disadvantageous to the Borrowers than clause (a); provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to any Borrower under the Federal Bankruptcy Code, an amount equal to
the aggregate Available Amount of all outstanding Letters of Credit shall be
immediately due and payable to the Agent for the account of the Lenders without
notice to or demand upon the Borrowers, which are expressly waived by each
Borrower, to be held in the L/C Cash Deposit Account. If at any time an Event of
Default is continuing the Agent determines that any funds held in the L/C Cash
Deposit Account are subject to any right or claim of any Person other than the
Agent and the Lenders or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrowers will,
forthwith upon demand by the Agent, pay to the Agent, as additional funds to be
deposited and held in the L/C Cash Deposit Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Deposit Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the
extent permitted by applicable law. After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such L/C Cash Deposit Account shall be returned to the Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty. The Company hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Borrower now
or hereafter existing under or in respect of this Agreement and the Notes
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent or any Lender in enforcing any rights under this
Agreement. Without limiting the generality of the foregoing, the Company's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by such Borrower to the Agent or any Lender under
or in respect of this Agreement and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. Guaranty Absolute. (a) The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Lender with respect thereto. The obligations of the
Company under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Borrower under or in respect
of this Agreement
and the Notes, and a separate action or actions may be brought and prosecuted
against the Company to enforce this Guaranty, irrespective of whether any action
is brought against any Borrower or whether any Borrower is joined in any such
action or actions. The liability of the Company under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Company hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement, any Note or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other obligations of
any Borrower under or in respect of this Agreement and the Notes, or any other
amendment or waiver of or any consent to departure from this Agreement or any
Note, including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Borrower or any of its
Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or
any taking, release or amendment or waiver of, or consent to departure from, any
other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations or
any other obligations of any Borrower under this Agreement and the Notes or any
other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the Company any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Borrower now or
hereafter known to the Agent or such Lender (the Company waiving any duty on the
part of the Agent and the Lenders to disclose such information);
(g) the failure of any other Person to execute or deliver this Guaranty or
any other guaranty or agreement or the release or reduction of liability of the
Company or other guarantor or surety with respect to the Guaranteed Obligations;
or
(h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the Agent
or any Lender that might otherwise constitute a defense available to, or a
discharge of, any Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Borrower or
any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by the Agent or any Lender that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Company or other
rights of the Company to proceed against any Borrower, any other guarantor
or any other Person or any collateral and (ii) any defense based on any
right of set-off or counterclaim against or in respect of the obligations
of the Company hereunder.
(d) The Company hereby unconditionally and irrevocably waives any duty
on the part of the Agent or any Lender to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and the Notes and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all Letters of Credit shall have expired or been
terminated and the Commitments shall have expired or been terminated. If any
amount shall be paid to the Company in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty,
(b) the Termination Date and (c) the latest date of expiration or termination of
all Letters of Credit, such amount shall be received and held in trust for the
benefit of the Agent and the Lenders, shall be segregated from other property
and funds of the Company and shall forthwith be paid or delivered to the Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Agreement and the Notes, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) the Company shall make payment to the Agent or any Lender of all
or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, (iii) the Termination Date shall have occurred and (iv)
all Letters of Credit shall have expired or been terminated, the Agent and the
Lenders will, at the Company's request and expense, execute and deliver to the
Company appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Company of an
interest in the Guaranteed Obligations resulting from such payment made by the
Company pursuant to this Guaranty.
SECTION 7.05. Subordination. The Company hereby subordinates any and all
debts, liabilities and other obligations owed to the Company by any Borrower
(the "Subordinated Obligations") to the Guaranteed Obligations to the extent and
in the manner hereinafter set forth in this Section 7.05:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default under Section 6.01(a) or (e) (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to
such Borrower), the Company may receive regularly scheduled payments from
such Borrower on account of the Subordinated Obligations. After the
occurrence and during the continuance of any Event of Default under Section
6.01(a) or (e) (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to such Borrower), however,
unless the Required Lenders otherwise agree, the
Company shall not demand, accept or take any action to collect any payment
on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to such Borrower, the Company agrees that the
Agent and the Lenders shall be entitled to receive payment in full in cash
of all Guaranteed Obligations (including all interest and expenses accruing
after the commencement of a proceeding under any Bankruptcy Law, whether or
not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Company receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Event of Default under Section 6.01(a) or (e) (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to
such Borrower), the Company shall, if the Agent so requests, collect,
enforce and receive payments on account of the Subordinated Obligations as
trustee for the Agent and the Lenders and deliver such payments to the
Agent on account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of
the Company under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or (e) (including
the commencement and continuation of any proceeding under any Bankruptcy
Law relating to such Borrower), the Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of the
Company, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Post Petition Interest), and
(ii) to require the Company (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Agent for application to the Guaranteed
Obligations (including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the
Advances owing to it and the Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Agent or such Lender herein or otherwise, in each case as
and to the extent provided in Section 9.07.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its capacities as a
Lender and Issuing Bank, as applicable) hereby appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Company or any other Borrower pursuant
to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or 2.19, as the case may be, or an
Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult
with legal counsel (including counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance, observance or satisfaction of any of the
terms, covenants or conditions of this Agreement on the part of any Borrower or
the existence at any time of any Default or to inspect the property (including
the books and records) of the Company or any other Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier or telegram) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its Commitments, the
Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own securities of the
Company or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders. The Agent shall have no
duty to disclose any information obtained or received by it or any of its
Affiliates relating to the Company or any of its Subsidiaries to the extent such
information was obtained or received in any capacity other than as Agent. In the
event that Citibank or any of its Affiliates shall be or become an indenture
trustee under the Trust Indenture Act of 1939 (as amended, the "Trust Indenture
Act") in respect of any securities issued or guaranteed by the Borrower, the
parties hereto acknowledge and agree that any payment or property received in
satisfaction of or in respect of any obligation of the Borrower hereunder or
under any other Loan Document by or on behalf of Citibank in its capacity as the
Agent for the benefit of any Lender under this Agreement or any Note (other than
Citibank or an Affiliate of Citibank) and which is applied in accordance with
this Agreement shall be deemed to be exempt from the requirements of Section 311
of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture
Act.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Company) from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Company. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Company) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against any such Issuing Bank in any way relating
to or arising out of the Loan Documents or any action taken or omitted by
such Issuing Bank hereunder or in connection herewith; provided, however,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse any such Issuing Bank promptly upon demand for
its Ratable Share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Company under Section 9.04, to
the extent that such Issuing Bank is not promptly reimbursed for such costs
and expenses by the Company.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to
be paid by the Lenders to the Agent as provided herein shall not relieve
any other Lender of its obligation hereunder to reimburse the Agent or any
Issuing Bank for its Ratable Share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the Agent or
any Issuing Bank for such other Lender's Ratable Share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 9.05 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes. Each of the Agent
and each Issuing Bank agrees to return to the Lenders their respective
Ratable Shares of any amounts paid under this Section 9.05 that are
subsequently reimbursed by the Company.
SECTION 8.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VIII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be performed by the Sub-Agent, and
each of the Company, each other Borrower and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Agent under this Agreement as relate to the
performance of its obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges
that none of the arrangers, syndication agent, documentation agents nor any
other Lender designated as any "Agent" (other than the Agent) on the signature
pages or the cover page hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders other than in accordance with Section 2.18, (c) reduce the principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Advances, or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder, (f) release the Company from any of
its obligations under Article VII or (g) amend this Section 9.01; and provided
further that (x) no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note and (y) no amendment, waiver or consent shall, unless in writing and signed
by the Issuing Banks in addition to the Lenders required above to take such
action, adversely affect the rights or obligations of the Issuing Banks in their
capacities as such under this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), if to the Company or to any Designated Subsidiary at the
Company's address at One Riverfront Plaza, Corning, NY 14831, Facsimile number
(607) 974-6686, Telephone number (607) 974-9000 Attention: Secretary; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender; and if to the Agent, at its address at Two Penns
Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department;
or, as to any Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Company and the Agent, provided that materials required
to be delivered pursuant to Section 5.01(i)(i), (ii) or (iv) shall be delivered
to the Agent as specified in Section 9.02(b) or as otherwise specified to the
Company by the Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or e-mailed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VIII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent and
except as otherwise provided in Section 5.01(i), materials required to be
delivered pursuant to Section 5.01(i)(i), (ii) and (iv) shall be delivered
to the Agent in an electronic medium in a format acceptable to the Agent
and the Lenders by e-mail at oploanswebadmin@citigroup.com. The Company
agrees that the Agent may make such materials, as well as any other written
information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating
to this Agreement, the Notes or any of the transactions contemplated hereby
(other than notices delivered under Article II) (collectively, the
"Communications") available to the Lenders by posting such notices on
Intralinks or a substantially similar electronic system (the "Platform"),
provided that the Lenders and any other Person given access to the Platform
by the Agent shall have agreed in writing to the provisions of Section
9.08. The Company acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent
nor any of its Affiliates warrants the accuracy, adequacy or completeness
of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or
other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of
the Communications to such Lender by email or telecopier. Each Lender
agrees (i) to notify the Agent in writing of such Lender's e-mail address
to which a Notice may be sent by electronic transmission (including by
electronic communication) on or before the date such Lender becomes a party
to this Agreement (and from time to time thereafter to ensure that the
Agent has on record an effective e-mail address for such Lender) and (ii)
that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Company further agrees to pay on demand all out of pocket costs
and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances or (ii) the actual
or alleged presence of Hazardous Materials on any property of the Company
or any of its Subsidiaries or any Environmental Action relating in any way
to the Company or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of
an investigation, litigation or other proceeding to which the indemnity in
this Section 9.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Company,
its directors, equityholders or creditors or an Indemnified Party or any
other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are
consummated. The Company also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender,
any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of
or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances. In furtherance of the foregoing, the Company agrees to pay any
civil penalty or fine assessed by the U.S. Department of the Treasury's
Office of Foreign Assets Control ("OFAC") against, and all reasonable costs
and expenses (including reasonable counsel fees and disbursements) incurred
in connection with the defense thereof by, the Agent or any Lender solely
as a result of conduct of the Company or any of its Subsidiaries that
violates a sanction enforced by OFAC.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance is made by any Borrower to or for the account of a Lender (i)
other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08, 2.10, 2.12 or
2.18, acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this
Agreement pursuant to Section 9.07 as a result of a demand by the Company
pursuant to Section 9.07(a) or (ii) as a result of a payment or Conversion
pursuant to Section 2.08, 2.10 or 2.12, the applicable Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including,
without limitation, any loss (excluding loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such
Advance. If the amount of the Committed Currency purchased by any Lender in
the case of a Conversion or exchange of Advances in the case of Section
2.08 or 2.12 exceeds the sum required to satisfy such Lender's liability in
respect of such Advances, such Lender agrees to remit to the Company such
excess.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Company or any Borrower
against any and all of the obligations of the Company or any Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the appropriate Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective (other
than Sections 2.01 and 2.03, which shall only become effective upon satisfaction
of the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Company and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Company, the
Agent and each Lender and their respective successors and assigns, except that
neither the Company nor any other Borrower shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may with the
consent of each Issuing Bank (which consent shall not be unreasonably withheld
or delayed) and, if demanded by the Company (so long as no Event of Default
shall have occurred and be continuing and following a demand by such Lender
pursuant to Section 2.11 or 2.14) upon at least five Business Days' notice to
such Lender and the Agent, will assign to one or more Persons all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, its Unissued
Letter of Credit Commitment, the Advances owing to it, its participations in
Letters of Credit and the Note or Notes held by it); provided, however, that (i)
each such assignment shall be of a constant, and not a varying, percentage of
all rights and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of (x) the Revolving Credit Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and (y) the Unissued Letter of Credit Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, in each case, unless the Company and the Agent otherwise agree (iii)
each such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Company pursuant to this Section 9.07(a)
shall be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either the Borrowers or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500 payable by the parties
to each such assignment, provided, however, that in the case of each assignment
made as a result of a demand by the Company, such recordation fee shall be
payable by the Company except that no such recordation fee shall be payable in
the case of an assignment made at the request of the Company to an Eligible
Assignee that is an existing Lender. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 8.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any other Borrower or the
performance or observance by the Company or any other Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section 9.02 a
copy of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Company or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Company or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Company, the other Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Company or any other Borrower therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to any Borrower furnished to such Lender by or on behalf of such
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Company Information relating to any Borrower received by
it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender may
disclose to any Person any confidential, proprietary or non-public information
of the Company furnished to the Agent or the Lenders by the Company (such
information being referred to collectively herein as the "Company Information"),
except that each of the Agent and each of the Lenders may disclose Company
Information (i) to its and its affiliates' employees, officers, directors,
agents and advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Company
Information and such person shall have agreed to keep such Company Information
confidential on substantially the same terms as provided herein), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process or
requested by any self-regulatory authority, provided that, to the extent
practicable, the Company is given prompt written notice of such requirement or
request prior to such disclosure and assistance in obtaining an order protecting
such information from public disclosure, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this Section 9.08, to any assignee or
participant or prospective assignee or participant, (vii) to the extent such
Company Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 9.08
by the Agent or such Lender, or (B) is or becomes available to the Agent or such
Lender on a nonconfidential basis from a source other than the Company and not,
to the knowledge of the Agent or such Lender, in breach of such third party's
obligations of confidentiality and (viii) with the consent of the Company.
SECTION 9.09. Designated Subsidiaries. (a) Designation. The Company may at
any time, and from time to time, upon not less than 10 Business Days' notice,
notify the Agent that the Company intends to designate a Subsidiary as a
"Designated Subsidiary" for purposes of this Agreement. On or after the date
that is 10
Business Days after such notice, upon delivery to the Agent and each Lender of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D hereto, such Subsidiary shall
thereupon become a "Designated Subsidiary" for purposes of this Agreement and,
as such, shall have all of the rights and obligations of a Borrower hereunder.
The Agent shall promptly notify each Lender of the Company's notice of such
pending designation by the Company and the identity of the respective
Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a),
if the designation of such Designated Subsidiary obligates the Agent or any
Lender to comply with "know your customer" or similar identification procedures
in circumstances where the necessary information is not already available to it,
the Company shall, promptly upon the request of the Agent or any Lender, supply
such documentation and other evidence as is reasonably requested by the Agent or
any Lender in order for the Agent or such Lender to carry out and be satisfied
it has complied with the results of all necessary "know your customer" or other
similar checks under all applicable laws and regulations.
If the Company shall designate as a Borrower hereunder any Subsidiary not
organized under the laws of the United States or any State thereof, any Lender
may, with notice to the Agent and the Company, fulfill its Commitment by causing
an Affiliate of such Lender organized in the same jurisdiction as such
Designated Subsidiary or another foreign jurisdiction agreed to by such Lender
and the Company, to act as the Lender in respect of such Designated Subsidiary,
and such Lender shall, to the extent of Advances made to such Designated
Subsidiary, be deemed for all purposes hereof to have satisfied its Commitment
hereunder in respect of such Designated Subsidiary.
As soon as practicable after receiving notice from the Company or the Agent
of the Company's intent to designate a Subsidiary as a Designated Borrower, and
in any event no later than five Business Days after the delivery of such notice,
for a Designated Subsidiary that is organized under the laws of a jurisdiction
other than of the United States or a political subdivision thereof, any Lender
that may not legally lend to, establish credit for the account of and/or do any
business whatsoever with such Designated Subsidiary directly or through an
Affiliate of such Lender as provided in the immediately preceding paragraph (a
"Protesting Lender") shall so notify the Company and the Agent in writing. With
respect to each Protesting Lender, the Company shall, effective on or before the
date that such Designated Subsidiary shall have the right to borrow hereunder,
either (A) notify the Agent and such Protesting Lender that the Commitments of
such Protesting Lender shall be terminated or assigned to a Lender or an
Eligible Assignee that is not a Protesting Lender; provided that such Protesting
Lender shall have received payment of an amount equal to the outstanding
principal of its Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company or the
relevant Designated Subsidiary (in the case of all other amounts), or (B) cancel
its request to designate such Subsidiary as a "Designated Subsidiary" hereunder.
(b) Termination. Upon the indefeasible payment and performance in full of
all of the indebtedness, liabilities and obligations under this Agreement of any
Designated Subsidiary then, so long as at the time no Notice of Borrowing in
respect of such Designated Subsidiary is outstanding, such Subsidiary's status
as a "Designated Subsidiary" shall terminate upon notice to such effect from the
Agent to the Lenders (which notice the Agent shall give promptly, and only upon
its receipt of a request therefor from the Company). Thereafter, the Lenders
shall be under no further obligation to make any Advance hereunder to such
Designated Subsidiary.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal
banking procedures the Agent could purchase Dollars with such other currency at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder in a Committed Currency into Dollars, the parties
agree to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase such Committed Currency with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of any Borrower in respect of any sum due from it in any
currency (the "Primary Currency") to any Lender or the Agent hereunder shall,
notwithstanding any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the Agent
(as the case may be), of any sum adjudged to be so due in such other currency,
such Lender or the Agent (as the case may be) may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the applicable Primary
Currency so purchased exceeds such sum due to any Lender or the Agent (as the
case may be) in the applicable Primary Currency, such Lender or the Agent (as
the case may be) agrees to remit to such Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the any such New York State
court or in such federal court may be made upon the Company and each Designated
Subsidiary hereby irrevocably appoints the Company its authorized agent to
accept such service of process, and agrees that the failure of the Company to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. The Company and each Designated Subsidiary hereby further irrevocably
consent to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the Company at its address specified pursuant to Section
9.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction. To the extent that each Designated Subsidiary has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each Designated Subsidiary hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 9.14. Substitution of Currency. If a change in any Committed
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definition of Eurocurrency Rate) will be amended to the
extent determined by the Agent (acting reasonably and in consultation with the
Company) to be necessary to reflect the change in currency and to put the
Lenders and the Borrowers in the same position, so far as possible, that they
would have been in if no change in such Committed Currency had occurred.
SECTION 9.15. No Liability of the Issuing Banks. The Borrowers assume all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither an Issuing Bank
nor any of its officers or directors shall be liable or responsible for: (a) the
use that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; or (c) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit, except that the applicable
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to such Borrower, to the extent of any direct, but not
consequential, damages suffered by such Borrower that such Borrower proves were
caused by such Issuing Bank's willful misconduct or gross negligence when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary; provided that nothing herein shall be
deemed to excuse such Issuing Bank if it acts with gross negligence or willful
misconduct in accepting such documents.
SECTION 9.16. Patriot Act Notice. Each Lender and the Agent (for itself and
not on behalf of any Lender) hereby notifies each Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender
or the Agent, as applicable, to identify each Borrower in accordance with the
Patriot Act. Each Borrower shall provide such information and take such actions
as are reasonably requested by the Agent or any Lenders in order to assist the
Agent and the Lenders in maintaining compliance with the Patriot Act.
SECTION 9.17. Power of Attorney. Each Subsidiary of the Company may from
time to time authorize and appoint the Company as its attorney-in-fact to
execute and deliver (a) any amendment, waiver or consent in accordance with
Section 9.01 on behalf of and in the name of such Subsidiary and (b) any notice
or other communication hereunder, on behalf of and in the name of such
Subsidiary. Such authorization shall become effective as of the date on which
such Subsidiary delivers to the Agent a power of attorney enforceable under
applicable law and any additional information to the Agent as necessary to make
such power of attorney the legal, valid and binding obligation of such
Subsidiary.
SECTION 9.18. Waiver of Jury Trial. Each of the Company, each other
Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement or the Notes or
the actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CORNING INCORPORATED
By /s/ Phillip E. Gorham
Title: Assistant Treasurer
CITIBANK, N.A.,
as Agent
By /s/ Carolyn A. Kee
Title: Vice President
Lenders
-------
Letter of Credit Commitment
$100,000,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
Title: Vice President
$100,000,000 JPMORGAN CHASE BANK, N.A.
By /s/ Christophe Vohmann
Title: Vice President
$200,000,000 Total of the Letter of Credit Commitments
Revolving Credit Commitment
---------------------------
$125,000,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
Title: Vice President
$125,000,000 JPMORGAN CHASE BANK, N.A.
By /s/ Christophe Vohmann
Title: Vice President
Co-Documentation Agents
------------------------
$100,000,000 BANK OF AMERICA, N.A.
By /s/ Kevin McMahon
Title: Senior Vice President
$100,000,000 THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH
By /s/ Harumi Kambara
Title: Authorized Signatory
$100,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Thomas Liu
Title: Vice President
$100,000,000 BARCLAYS BANK PLC
By /s/ Nicholas Bell
Title: Director
$100,000,000 DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ Yvonne Tilden
Title: Vice President
By /s/ Andreas Neumeier
Title: Director
Managing Agents
---------------
$75,000,000 MIZUHO CORPORATE BANK, LTD.
By /s/ Bertram H. Tang
Title: Senior Vice President and Team Leader
$75,000,000 STANDARD CHARTERED BANK
By /s/ Richard VandeBerghe
Title: Director
By /s/ Robert Reddington
Title: Associate
Lenders
-------
$50,000,000 WILLIAM STREET COMMITMENT
CORPORATION (Recourse only to assets of
William Street Commitment Corporation)
By /s/ Mark Walton
Title: Assistant Vice President
$50,000,000 SUMITOMO MITSUI BANKING CORPORATION
By /s/ David Buck
Title: Senior Vice President
$25,000,000 MELLON BANK, N.A.
By /s/ Robert J. Mitchell
Title: First Vice President
$25,000,000 THE BANK OF NOVA SCOTIA
By /s/ Chris Osborn
Title: Managing Director
$25,000,000 BANK OF CHINA, NEW YORK BRANCH
By /s/ Richard Brad spies
Title: Deputy General Manager
$25,000,000 BANK OF TAIWAN, NEW YORK AGENCY
By /s/ Hung Chen
Title: Assistant Vice President
$25,000,000 MEGA INTERNATIONAL COMMERCIAL BANK
CO., LTD., NEW YORK BRANCH
By /s/ Nae-Yee Lung
Title: Senior Vice President & General Manager
$1,125,000,000 Total of the Revolving Credit Commitments
SCHEDULE I
CORNING INCORPORATED
AMENDED AND RESTATED CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
--------------------------------------- ------------------------------------------- -------------------------------------------
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Bank of America, 2001 Clayton Road 2001 Clayton Road
N.A. Building B, 2nd Floor Building B, 2nd Floor
Concord, CA 94520 Concord, CA 94520
Attn: Rechelle Liguid Attn: Rechelle Liguid
T: 925 675-8139 T: 925 675-8139
F: 888 969-2443 F: 888 969-2443
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Bank of China, Street410 Madison Avenue 410 Madison Avenue
New York Branch New York, NY 10017 New York, NY 10017
Attn: Yungtuen Lee Attn: Yungtuen Lee
T: 212 935-3101 T: 212 935-3101
F: 646 840-1796 F: 646 840-1796
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
The Bank of Nova Scotia 580 California Street 580 California Street
Suite 2100 Suite 2100
San Francisco, Ca 94104 San Francisco, Ca 94104
Attn: Rachelle Duncan Attn: Rachelle Duncan
T: 212 225-5705 T: 212 225-5705
F: 212 225-5709 F: 212 225-5709
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Bank of Taiwan, 100 Wall Street 100 Wall Street
New York Agency 11th Floor 11th Floor
New York, NY 10005 New York, NY 10005
Attn: Jessie Chang Attn: Jessie Chang
T: 212 968-8128 T: 212 968-8128
F: 212 968-8370 F: 212 968-8370
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
The Bank of Tokyo-Mitsubishi UFJ, c/o The Bank of Tokyo-Mitsubishi UFJ, c/o The Bank of Tokyo-Mitsubishi UFJ,
Ltd., New York Branch Ltd., New York Branch Ltd., New York Branch
1251 Avenue of the Americas 1251 Avenue of the Americas
12th Floor 12th Floor
New York, NY 10020 New York, NY 10020
Attn: Rolandu Uy Attn: Rolandu Uy
T: 201 413-8570 T: 201 413-8570
F: 201 521-2304 F: 201 521-2304
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Barclays Bank PLC 200 Cedar Knolls Road 200 Cedar Knolls Road
Whippany, NJ 07981 Whippany, NJ 07981
Attn: Jan Becker Attn: Jan Becker
T: 973 576-3795 T: 973 576-3795
F: 973 576-3014 F: 973 576-3014
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Citibank, N.A. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Deutsche Bank AG New York Branch 60 Wall street 60 Wall Street
New York, NY 10005 New York, NY 10005
Attn: Yvonne Preil Attn: Yvonne Preil
T: 212 250-5391 T: 212 250-5391
F: 212 797-4347 F: 212 797-4347
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
JPMorgan Chase Bank, NA 1111 Fannin, 10th Floor 1111 Fannin, 10th Floor
Houston, TX 77002 Houston, TX 77002
Attn: Christie Vo Attn: Christie Vo
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Mega International Commercial Bank 65 Liberty Street 65 Liberty Street
Co., Ltd., New York Branch New York, NY 10005 New York, NY 10005
Attn: Lucy Chen Attn: Lucy Chen
T: 212 815-9117 T: 212 815-9117
F: 212 766-5006 F: 212 766-5006
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Mellon Bank, NA One Mellon Bank Center One Mellon Bank Center
Pittsburgh, PA 15258 Pittsburgh, PA 15258
Attn: Teresa Hayward Attn: Teresa Hayward
T: 412 234-4744 T: 412 234-4744
F: 412 209-6134 F: 412 209-6134
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Mizuho Corporate Bank, Ltd. 1800 Plaza Ten 1800 Plaza Ten
Harborside Financial Center Harborside Financial Center
Jersey city, NJ 07311 Jersey city, NJ 07331
Attn: Maragaret Schwed Attn: Maragaret Schwed
T: 201 626-9138 T: 201 626-9138
F: 201 626-9913 F: 201 626-9913
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Standard Chartered Bank Attn: Vicky Faltine Attn: Vicky Faltine
T: 212 667-0203 T: 212 667-0203
F: 212 667-0287 F: 212 667-0287
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Sumitomo Mitsui Banking Corporation 277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Yvette Browne Attn: Yvette Browne
T: 212 224-4306 T: 212 224-4306
F: 212 224-5197 F: 212 224-5197
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
Wachovia Bank, National Association 201 S. College Street 201 S. College Street
CP9, NC1183 CP9, NC1183
Charlotte, NC 28288 Charlotte, NC 28288
Attn: Sharon Holman Attn: Sharon Holman
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
William Street Commitment Corporation 30 Hudson Street, 17th Floor 30 Hudson Street, 17th Floor
Jersey City, NJ 07302 Jersey City, NJ 07302
Attn: Philip Green Attn: Philip Green
T: 212 357-7570 T: 212 357-7570
F: 212 357-4597 F: 212 357-4597
--------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------- ------------------------------------------- -------------------------------------------
SCHEDULE 2.01(b)
Existing Letters of Credit
Issuer Issue Date Expiry Date Face Amount Beneficiary
Citibank, N.A. 10/15/05 3/12/07 $15,000,000 ACE INA Overseas
Insurance
Citibank, N.A. 12/9/05 12/31/06 $28,638,000 Travelers Indemnity
Insurance
SCHEDULE 3.01(b)
Disclosed Litigation
Environmental Litigation. Corning has been named by the Environmental Protection
Agency (the Agency) under the Superfund Act, or by state governments under
similar state laws, as a potentially responsible party at 12 active hazardous
waste sites. Under the Superfund Act, all parties who may have contributed any
waste to a hazardous waste site, identified by such Agency, are jointly and
severally liable for the cost of cleanup unless the Agency agrees otherwise. It
is Corning's policy to accrue for its estimated liability related to Superfund
sites and other environmental liabilities related to property owned by Corning
based on expert analysis and continual monitoring by both internal and external
consultants. Corning has accrued approximately $15 million (undiscounted) for
its estimated liability for environmental cleanup and litigation at September
30, 2006.
Dow Corning Bankruptcy. Corning and The Dow Chemical Company ("Dow Chemical")
each own 50% of the common stock of Dow Corning. In May 1995, Dow Corning filed
for bankruptcy protection to address pending and claimed liabilities arising
from many thousand breast implant product lawsuits. On June 1, 2004, Dow Corning
emerged from Chapter 11 with a Plan of Reorganization (the "Plan") which
provided for the settlement or other resolution of implant claims. The Plan also
includes releases for Corning and Dow Chemical as shareholders in exchange for
contributions to the Plan.
Under the terms of the Plan, Dow Corning has established and is funding a
Settlement Trust and a Litigation Facility to provide a means for tort claimants
to settle or litigate their claims. Inclusive of insurance, Dow Corning has paid
approximately $1.6 billion to the Settlement Trust. As of September 30, 2006,
Dow Corning had recorded a reserve for breast implant litigation of $1.7 billion
and anticipates insurance receivables of $207 million. As a separate matter
arising from the bankruptcy proceedings, Dow Corning is defending claims
asserted by a collection of commercial creditors who claim additional interest
at default rates and enforcement costs, during the period from May 1995 through
June 2004. On July 26, 2006, the U.S. Court of Appeals vacated the judgment of
the District Court fixing the interest component, ruled that default interest
and enforcement costs may be awarded subject to equitable factors to be
determined, and directed that the matter be remanded for further proceedings.
Dow Corning filed a petition for rehearing by the Court of Appeals, which has
not yet been decided. As of September 30, 2006, Dow Corning has estimated the
interest payable to commercial creditors to be within the range of $67.4 million
to $207.4 million. As Dow Corning management believes no single amount within
the range appears to be a better estimate than any other amount within the
range, Dow Corning has recorded the minimum liability within the range. Should
Dow Corning not prevail in this matter,Corning's equity earnings would be
reduced by its 50% share of the amount in excess of $67.4 million, net of
applicable tax benefits. There are a number of other claims in the bankruptcy
proceedings against Dow Corning awaiting resolution by the U.S. District Court,
and it is reasonably possible that Dow Corning may record bankruptcy-related
charges in the future. There are no remaining tort claims against Corning, other
than those that will be channeled by the Plan into facilities established by the
Plan or otherwise defended by the Litigation Facility.
Pittsburgh Corning Corporation. Corning and PPG Industries, Inc. ("PPG") each
own 50% of the capital stock of Pittsburgh Corning Corporation ("PCC"). Over a
period of more than two decades, PCC and several other defendants have been
named in numerous lawsuits involving claims alleging personal injury from
exposure to asbestos. On April 16, 2000, PCC filed for Chapter 11 reorganization
in the U.S. Bankruptcy Court for the Western District of Pennsylvania. As of the
bankruptcy filing, PCC had in excess of 140,000 open claims and had insufficient
remaining insurance and assets to deal with its alleged current and future
liabilities. More than 100,000 additional claims have been filed with PCC after
its bankruptcy filing. As a result of PCC's bankruptcy filing, Corning recorded
an after-tax charge of $36 million in 2001 to fully impair its investment in PCC
and discontinued recognition of equity earnings. At the time PCC filed for
bankruptcy protection, there were approximately 12,400 claims pending against
Corning in state court lawsuits alleging various theories of liability based on
exposure to PCC's asbestos products and typically requesting monetary damages in
excess of one million dollars per claim. Corning has defended those claims on
the basis of the separate corporate status of PCC and the absence of any facts
supporting claims of direct liability arising from PCC's asbestos products.
Corning is also currently named in approximately 10,900 other cases
(approximately 42,700 claims) alleging injuries from asbestos and similar
amounts of monetary damages per claim. Those cases have been covered by
insurance without material impact to Corning to
date. Asbestos litigation is inherently difficult, and past trends in resolving
these claims may not be indicators of future outcomes.
In the bankruptcy court in April 2000, PCC obtained a preliminary injunction
against the prosecution of asbestos actions arising from PCC's products against
its two shareholders to afford the parties a period of time in which to
negotiate a plan of reorganization for PCC (the "PCC Plan").
On May 14, 2002, PPG announced that it had agreed with certain of its insurance
carriers and representatives of current and future asbestos claimants on the
terms of a settlement arrangement applicable to claims arising from PCC's
products.
On March 28, 2003, Corning announced that it had reached agreement with the
representatives of asbestos claimants for the settlement of all current and
future asbestos claims against it and Pittsburgh Corning Corporation, which
might arise from PCC products or operations. The proposed settlement, if the
Plan is approved and becomes effective, will require Corning to relinquish its
equity interest in PCC, contribute its equity interest in Pittsburgh Corning
Europe N.V. ("PCE"), a Belgian corporation, and contribute 25 million shares of
Corning common stock. Corning also agreed to pay a total of $140 million in six
annual installments (present value $131 million at March 2003), beginning one
year after the Plan becomes effective, with 5.5 percent interest from June 2004,
and to assign certain insurance policy proceeds from its primary insurance and a
portion of its excess insurance at the time of settlement.
Since March 28, 2003, we have recorded total net charges of $955 million to
reflect the agreed settlement contributions and subsequent adjustments for the
change in the fair value of the components.
The fair value of the liability expected to be settled by contribution of our
investment in PCE, assigned insurance proceeds, and the fair value of 25 million
shares of our common stock (totaling $797 million at September 30, 2006) is
recorded in the other accrued liabilities component in our consolidated balance
sheets. As the timing of this obligation's settlement will depend on future
judicial rulings, this portion of the PCC liability is considered a "due on
demand" obligation and is classified as a current liability. The remaining
portion of the settlement liability (totaling $158 million at September 30,
2006), representing the net present value of the cash payments, is recorded in
the other liabilities component in our consolidated balance sheets.
Two of Corning's primary insurers and several excess insurers have commenced
litigation for a declaration of the rights and obligations of the parties under
insurance policies, including rights that may be affected by the settlement
arrangement described above. Corning is vigorously contesting these cases.
The PCC Plan received a favorable vote from creditors in March 2004. Hearings to
consider objections to the Plan were held in the Bankruptcy Court in May 2004.
For more than two years, there have been several rounds of briefing and argument
in the Bankruptcy Court to address these objections. In February, 2006, the
Bankruptcy Court requested that the Plan proponents delete references to Section
105(a) of the Bankruptcy Code and resubmit the Plan. The final round of oral
argument was held on July 21, 2006. The Bankruptcy Court reserved decision. If
the Bankruptcy Court does not approve the PCC Plan in its current form, changes
to the Plan are probable as it is likely that the Court will allow the
proponents time to propose amendments.
Seoul Guarantee Insurance Co. and other creditors against Samsung Group and
affiliates. As of March 2005, Samsung Corning Precision Glass Co., Ltd.
("Samsung Corning Precision") and Samsung Corning Co. Ltd. (`Samsung Corning")
were two of approximately thirty co-defendants in a lawsuit filed by Seoul
Guarantee Insurance Co. and 14 other creditors ("SGI and Creditors") for alleged
breach of an agreement that approximately thirty affiliates of the Samsung group
entered into with SGI and Creditors in September 1999. The lawsuit is pending in
the courts of Korea. According to the agreement, the Samsung affiliates agreed
to sell 3.5 million shares of Samsung Life Insurance Co., Ltd. ("SLI") by
December 31, 2000, which were transferred to SGI and Creditors in connection
with the petition for court receivership of Samsung Motor Inc. In the lawsuit,
SGI and Creditors allege that, in the event that the proceeds of sale of the SLI
shares is less than 2.45 trillion Korean won (approximately $2.42 billion), the
Samsung affiliates allegedly agreed to compensate SGI and Creditors for the
shortfall, by other
means, including Samsung affiliates' purchase of equity or subordinated
debentures to be issued by SGI and Creditors. Any excess proceeds are to be
distributed to the Samsung affiliates. As of March 2005, the shares of Samsung
Life Insurance Co., Ltd. had not been sold. The suit asks for damages of
approximately $4.68 billion plus penalty interest. Samsung Corning Precision and
Samsung Corning combined guarantees should represent no more than 3.1% of the
Samsung affiliates' total financial obligation. No claim in these matters has
been asserted against Corning Incorporated.
Ellsworth Industrial Park, Downers Grove, IL Environmental Litigation. In August
2005, Corning was named as a fourth party defendant in a class action, Ann Muniz
v. Rexnord Corp, filed in the U.S. District Court for the N.D. Illinois,
claiming an unspecified amount of damages and asserting various personal injury
and property damage claims against a number of corporate defendants. These
claims allegedly arise from the release of solvents from the operations of
several manufacturers at the place Ellsworth Industrial Park into soil and
ground water. As of June 2006, the District Court allowed two cross-claims for
contribution against Corning and two third-party complaints for contribution
against Corning. On July 10, 2006, plaintiffs settled with a number of
defendants and third-party defendants for $15.75 million, and the settling
defendants are mediating allocation. Corning has settled with three of the four
parties seeking contribution for a total of $99,000; the fourth party seeks
approximately $550,000 in settlement. On November 2, 2006, the Court denied the
parties' motions for summary judgment and adjourned the trial to March 12, 2007.
In March 2006, Corning was named as an additional party defendant in two
actions, Jana Bendik v. Precision Products, Inc. and Kevin Pote v. Ames Supply
Company, filed in the Circuit Court of Cook County, Illinois, claiming an
unspecified amount of damages and asserting personal injury and wrongful death
against a number of corporate defendants as a result of alleged ground water
contamination by releases of solvents from manufacturing operations at the
Ellsworth Industrial Park site. In May 2006, a corporate defendant filed amended
fourth party complaints in both Bendik and Pote alleging that Corning is the
alter ego of Harper-Wyman Company.
The sole basis of potential liability against Corning in all of the cases
related to Ellsworth Industrial Park is the claim of several corporate
defendants that Corning is the successor to and/or alter ego of Harper-Wyman
Company.
Saint-Gobain site, Louisville, Kentucky. The Corhart Refractories facility in
Louisville, Kentucky was sold to Corcliff Corporation pursuant to an Acquisition
Agreement between Corcliff Corporation and Corning Glass Works, "(Corning ")
dated April 1, 1985. Corcliff was subsequently sold to Saint-Gobain Corporation
which operated at the site until 2005. Saint-Gobain asserts in a letter dated
October 24, 2006, that liability for the environmental condition of the site
remains with Corning pursuant to the 1985 Acquisition Agreement and under
environmental and common law. Saint-Gobain notes the estimated cost to excavate
and demolish the building is $3.8 million; however, if local disposal is not an
option, the cost could exceed $15 million. On October 24, 2006, Saint-Gobain
also provided a site characterization report prepared by Chase Environmental,
which is under review. Corning does not agree with the Saint-Gobain's
interpretation of the 1985 Agreement, environmental and common law. No formal
claim has been asserted against Corning.
SCHEDULE 5.02(d)
Existing Subsidiary Debt
Borrower Coupon Maturity BV @10/30/2006
------------------------- ------------- ------------- -------------------
Corning Japan KK 4.75% 7/25/2008 $2,363,468
Corning Japan KK 3.50% 4/25/2009 $2,642,019
Corning Japan KK 4.25% 4/25/2009 $169,241
Corning Japan KK 2.15% 10/15/2013 $8,187,727
Corning Japan KK 2.30% 9/5/2014 $6,026,842
Corning Japan KK 2.10% 9/5/2014 $24,107,369
Corning Japan KK 1.50% 6/5/2015 $22,959,399
Corning Japan KK 2.60% 7/5/2014 $39,714,696
Corning Japan KK 2.11% 7/5/2014 $39,714,696
------------------------- ------------- ------------- -------------------
TOTAL $145,885,456
========================= ============= ============= ===================
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Advances made by the Lender to the Borrower pursuant to the Amended and Restated
Credit Agreement dated as of November 21, 2006 among the Borrower, [Corning
Incorporated,] the Lender and certain other lenders parties thereto, and
Citibank, N.A. as Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount of
each Advance from the date of such Advance until such principal amount is paid
in full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest in respect of each Advance (i) in Dollars are
payable in lawful money of the United States of America to the Agent at its
account maintained at 388 Greenwich Street, New York, New York 10013, in same
day funds and (ii) in any Committed Currency are payable in such currency at the
applicable Payment Office in same day funds. Each Advance owing to the Lender by
the Borrower pursuant to the Credit Agreement, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things,
(i) provides for the making of Advances by the Lender to the Borrower from time
to time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Advance being evidenced by this Promissory Note, (ii) contains
provisions for determining the Dollar Equivalent of Advances denominated in
Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
------------- --------------- ------------------ -------------------- ----------------
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Amended and Restated
Credit Agreement, dated as of November 21, 2006 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, [Corning Incorporated,]
certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________][for a Borrowing in a Committed Currency, list
currency and amount of Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement (except the representations set forth in the
last sentence of subsection (e) thereof, in subsection (f)(i) thereof
and in subsection (n) thereof) are correct, before and after giving
effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
additionally, if the undersigned is a Designated Subsidiary, the
representations and warranties contained in its Designation Agreement
are correct, before and after giving effect to the Proposed Borrowing
and to the application of the proceeds therefrom, as though made on
and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
------------------------
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as of
November 21, 2006 (as amended or modified from time to time, the "Credit
Agreement") among Corning Incorporated, a New York corporation (the "Company"),
the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the [Credit Agreement as of the date
hereof] [the Letter of Credit Facility] equal to the percentage interest
specified on Schedule 1 hereto of [all outstanding rights and obligations under
the Credit Agreement together with participations in Letters of Credit held by
the Assignor on the date hereof] [such Assignor's Unissued Letter of Credit
Commitment]. After giving effect to such sale and assignment, the Assignee's
[Revolving Credit Commitment and the amount of the Advances owing to the
Assignee] [Letter of Credit Commitment] will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or any other Borrower or the
performance or observance by the Company or any other Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note[, if any,] held by the
Assignor [and requests that the Agent exchange such Note for a new Note payable
to the order of [the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the Revolving Credit Commitment
assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to
the Revolving Credit Commitment retained by the Assignor under the Credit
Agreement[, respectively,] as specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
[Assignee's Revolving Credit Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______]
[Assignee's Letter of Credit Commitment: $______]
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
------------------------
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By
------------------------
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
------------------------------------------
Title:
[Approved this __________ day
of _______________, 200_
CORNING INCORPORATED
By ]*
------------------------------------------
Title:
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders parties
to the Credit Agreement dated
as of November 21, 2006
among Corning Incorporated,
said Lenders and Citibank, N.A.,
as Agent for said Lenders
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement dated as of
November 21, 2006 (as amended or modified from time to time, the "Credit
Agreement") among Corning Incorporated (the "Company"), the Lenders (as defined
in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the
"Agent"). Terms used herein and defined in the Credit Agreement shall have the
respective meanings ascribed to such terms in the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's agreement to
extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
1. The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of
_______________.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it, and the consummation of the transactions
contemplated hereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Designated Subsidiary's charter or by-laws or (ii)
law or any contractual restriction binding on or affecting the Designated
Subsidiary.
3. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Designated Subsidiary of this Designation Agreement, the Credit
Agreement or the Notes to be delivered by it or the consummation of the
transactions contemplated thereby.
4. This Designation Agreement and each of the Notes of the Designated
Subsidiary, when delivered, will have been duly executed and delivered, and
this Designation Agreement, the Credit Agreement and each of the Notes of
the Designated Subsidiary, when delivered, will constitute the legal, valid
and binding obligation of the Designated Subsidiary enforceable against the
Designated Subsidiary in accordance with their respective terms, except as
enforceability may be affected by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity, whether
enforcement is sought in a proceeding in equity or at law.
5. There is no pending or, to the knowledge of the Designated
Subsidiary, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
affecting the Designated Subsidiary or any of its Subsidiaries before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Designation Agreement, the
Credit Agreement, any Note of the Designated Subsidiary or the consummation
of the transactions contemplated thereby.
6. The Designated Subsidiary is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
7. The Designated Subsidiary is not an "investment company",
or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
8. The operations and properties of the Designated Subsidiary and each
of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that would be
reasonably likely to form the basis of an Environmental Action against the
Designated Subsidiary or any of its Subsidiaries or any of their properties
that could have a Material Adverse Effect.
9. With such exceptions as are not material, the Designated Subsidiary
and each of its Subsidiaries has filed, has caused to be filed or has been
included in all tax returns (federal, State, local and foreign) required to
be filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties.
10. The Designated Subsidiary and each of its Subsidiaries has title
to its properties sufficient for the conduct of business, and none of such
property is subject to any Lien except for Liens permitted under Section
5.02(a) of the Credit Agreement.
The Designated Subsidiary hereby agrees that service of process in any
action or proceeding brought in any New York State court or in federal
court may be made upon the Company at its offices at One Riverfront Plaza,
Corning, New York 14831, Attention: Secretary (the "Process Agent") and the
Designated Subsidiary hereby irrevocably appoints the Process Agent to give
any notice of any such service of process, and agrees that the failure of
the Process Agent to give any notice of any such service shall not impair
or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon.
The Company hereby accepts such appointment as Process Agent
and agrees with you that (i) the Company will maintain an office in Corning, New
York through the Termination Date and will give the Agent prompt notice of any
change of address of the Company, (ii) the Company will perform its duties as
Process Agent to receive on behalf of the Designated Subsidiary and its property
service of copies of the summons and complaint and any other process which may
be served in any action or proceeding in any New York State or federal court
sitting in New York City arising out of or relating to the Credit Agreement and
(iii) the Company will forward forthwith to the Designated Subsidiary at its
address at ___________________ or, if different, its then current address,
copies of any summons, complaint and other process which the Company received in
connection with its appointment as Process Agent.
Very truly yours,
CORNING INCORPORATED
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE COMPANY
November 21, 2006
To each of the Lenders parties
to the Credit Agreement dated
as of November 21, 2006
among Corning Incorporated,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Corning Incorporated, a
New York corporation (the "Company"), and am familiar with the authorization,
execution and delivery of the Amended and Restated Credit Agreement, dated
November 21, 2006 (the "Credit Agreement"), between the Company and the Lenders
parties thereto and Citibank, N.A., as Agent, for said Lenders. This opinion is
being furnished to you pursuant to Section 3.01(g) (iv) of the Credit Agreement.
All capitalized and undefined terms used herein shall have the meanings assigned
to them in the Credit Agreement.
I have examined executed copies of the Credit Agreement, the documents
furnished by the Company pursuant to Article III of the Credit Agreement, the
Restated Certificate of Incorporation of the Company and all amendments thereto
(the "Charter"), the Bylaws of the Company and all amendments thereto (the
"Bylaws"), a certificate of the Secretary of State of New York, dated November
13, 2006, attesting to the continued corporate existence and good standing of
the Company in the State of New York, and such other documents as I, in my
professional judgment, deemed necessary or appropriate as a basis for the
opinions set forth below. I have also examined the originals or copies,
certified or otherwise identified to my satisfaction, of such documents and
records of the Company and such public documents and records as I have deemed
necessary as a basis for the opinions hereinafter expressed.
In rendering the opinions set forth below, I have assumed the authenticity
of all documents submitted to me as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to me as
copies. I have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant thereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties.
Based upon the foregoing and having regard for such legal considerations as
I have deemed relevant, it is my opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of New York.
2. The execution, delivery and performance by the Company of the Credit
Agreement and the Notes, and the consummation of the transactions contemplated
thereby, are within the Company's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the Charter or the
By-laws or (ii) any present law, statute or regulation of the State of New York
or the federal laws of the United States (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve
System), which, in my experience, are normally applicable to the transactions of
the type contemplated by the Credit Agreement or (iii) any contractual or legal
restriction contained in any document listed on attached Schedule 1 (the list
will included the indentures and aircraft leases).
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party ("Filings and Approvals") is required for the due execution, delivery and
performance by the Company of the Credit Agreement and the Notes, except for
Filings and Approvals which have previously been made or obtained and are in
full force and effect on the date hereof, and Filings and Approvals required to
be made after the date hereof.
4. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes when delivered will be, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms.
5. To the best of my knowledge and other than as set forth in Schedule
3.01(b) of the Credit Agreement, there are no pending actions or proceedings, or
actions or proceedings threatened in writing against the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator that purport to
affect the validity, binding effect or enforceability of the Credit Agreement or
any of the Notes or the consummation of the transactions contemplated thereby or
that are likely to have a material adverse effect upon the financial condition
or operations of the Company and its Subsidiaries taken as a whole.
The opinions set forth above are subject to the following qualifications:
(i) My opinion in paragraph 4 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium, bank
conservatorship or receivership or other similar laws of general
application affecting creditors' rights.
(ii) My opinion in paragraphs 4 above is subject to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing and other similar
equitable doctrines affecting the enforceability of agreements generally
(regardless of whether considered in a proceeding in equity or at law).
(iii) I express no opinion herein as to (i) the waiver of inconvenient
forum or any claim that venue is improper or provisions relating to subject
matter jurisdiction of the courts set forth in the Credit Agreement or any
provisions of the Credit Agreement providing for choice of laws other than
the laws of the State of New York, or whether a federal or state court
outside of the State of New York would give effect to the choice of law
provision in the Credit Agreement which provides for a choice of New York
law, (ii) any provisions of the Credit Agreement which provide for
indemnification, contribution, waiver or release to the extent such
provisions may be limited or rendered unenforceable, in whole or in part,
by applicable federal or state securities laws, criminal statutes, or the
policies underlying such laws and by the effect of general rules of
contract law that limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification for
liability for action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct of any Person to be indemnified, exculpated, released, or exempted,
(iii) provisions in the Credit Agreement to the effect that terms may not
be waived or modified except in writing, (iv) provisions in the Credit
Agreement which provide for severability of provisions, or (v) federal or
state securities or blue sky laws, rules or regulations or the effect of
any land use, antitrust or environmental law, rule, regulation or
ordinance.
(iv) I express no opinion as to Section 2.14 of the Credit Agreement
insofar as it provides that any Lender purchasing a participation from
another Lender pursuant thereto may exercise set-off or similar rights with
respect to such participation.
This opinion is limited to the United States federal law and the laws of
the state of New York and I express no opinion as to the effect of the law of
any other jurisdiction wherein any Lender may be located or wherein enforcement
of the Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or collectible.
The foregoing opinion is being furnished to you solely for your benefit and
may not be relied upon by, nor may copies be delivered to, any other person
without my prior written consent.
Very truly yours,
EXHIBIT F - FORM OF
OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of November 21, 2006
among Corning Incorporated,
said Lenders and Citibank, N.A.,
as Agent for said Lenders
[Name of the Designated Subsidiary]
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(g) of the Amended
and Restated Credit Agreement, dated as of November 21, 2006 (the "Credit
Agreement"), among Corning Incorporated (the "Company"), the Lenders parties
thereto and Citibank, N.A., as Agent for said Lenders. Terms defined in the
Credit Agreement are used herein as therein defined.
We have acted as counsel to ____________ (the "Designated Subsidiary") in
connection with the preparation, execution and delivery of the Designation
Agreement (as defined in the Credit Agreement) executed by the Designated
Subsidiary.
In that connection, we have examined:
(1) The Designation Agreement executed by the Designated Subsidiary.
(2) The Credit Agreement.
(3) The documents furnished by the Designated Subsidiary pursuant to
Article III of the Credit Agreement.
(4) The [Articles] [Certificate] of Incorporation of the Designated
Subsidiary and all amendments thereto (the "Charter"). --------
(5) The by-laws of the Designated Subsidiary and all amendments thereto
(the "By-laws").
(6) A certificate of the Secretary of State of _______________, dated
__________, 200_, attesting to the continued corporate existence and
good standing of the Designated Subsidiary in that State.
In addition, we have examined the originals, or copies certified to our
satisfaction, of such other corporate records of the Designated Subsidiary,
certificates of public officials and of officers of the Designated Subsidiary,
and agreements, instruments and other documents, as we have deemed necessary as
a basis for the opinions expressed below. As to questions of fact material to
such opinions, we have, when relevant facts were not independently established
by us, relied upon certificates of the Designated Subsidiary or its officers or
of public officials. We have assumed the due execution and delivery, pursuant to
due authorization, of the Credit Agreement by the Initial Lenders and the Agent.
Our opinions expressed below are limited to the law of the State of
StateNew York, [the General Corporation Law of the State of StateDelaware] and
the Federal law of the United States.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of _______________.
2. The execution, delivery and performance by the Designated Subsidiary of
the Credit Agreement, its Designation Agreement and the Notes, and the
consummation of the transactions contemplated thereby, are within the Designated
Subsidiary's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the By-laws or (ii)
any present law, statute or regulation of the State of New York or the federal
laws of the United States (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), which, in my experience, are
normally applicable to the transactions of the type contemplated by the Credit
Agreement or (iii) any contractual or legal restriction contained in any
document listed on attached Schedule 1 (the list will included the indentures
and aircraft leases). The Credit Agreement, the Designation Agreement and the
Notes have been duly executed and delivered on behalf of the Designated
Subsidiary.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party ("Filings and Approvals") is required for the due execution, delivery and
performance by the by the Designated Subsidiary of the Credit Agreement, the
Designation Agreement and the Notes, except for Filings and Approvals which have
previously been made or obtained and are in full force and effect on the date
hereof, and Filings and Approvals required to be made after the date hereof.
4. The Credit Agreement and the Designation Agreement are, and after giving
effect to the initial Borrowing of the Designated Subsidiary, the Notes will be,
legal, valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective terms.
The opinions set forth above are subject to the following qualifications:
(a) Our opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) Our opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) We express no opinion herein as to (i) the waiver of inconvenient
forum or any claim that venue is improper or provisions relating to subject
matter jurisdiction of the courts set forth in the Credit Agreement or any
provisions of the Credit Agreement providing for choice of laws other than
the laws of the State of New York, or whether a federal or state court
outside of the State of New York would give effect to the choice of law
provision in the Credit Agreement which provides for a choice of New York
law, (ii) any provisions of the Credit Agreement which provide for
indemnification, contribution, waiver or release to the extent such
provisions may be limited or rendered unenforceable, in whole or in part,
by applicable federal or state securities laws, criminal statutes, or the
policies underlying such laws and by the effect of general rules of
contract law that limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification for
liability for action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct of any Person to be indemnified, exculpated, released, or exempted,
(iii) provisions in the Credit Agreement to the effect that terms may not
be waived or modified except in writing, (iv) provisions in the Credit
Agreement which provide for severability of provisions, or (v) federal or
state securities or blue sky laws, rules or regulations or the effect of
any land use, antitrust or environmental law, rule, regulation or
ordinance.
(d) We express no opinion as to (i) Section 2.14 of the Credit
Agreement insofar as it provides that any Lender purchasing a participation
from another Lender pursuant thereto may exercise set-off or similar rights
with respect to such participation, and (ii) the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Credit Agreement or the Notes may be
sought that limits the rates of interest legally chargeable or collectible.
Very truly yours
EXECUTION COPY
U.S. $1,125,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 21, 2006
Among
CORNING INCORPORATED
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
BANK OF AMERICA, N.A.
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
WACHOVIA BANK, NATIONAL ASSOCIATION
AND
BARCLAYS BANK PLC
DEUTSCHE BANK SECURITIES INC.
as Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
AND
J.P. MORGAN SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
---------------------
SECTION 1.02. Computation of Time Periods 13
---------------------------
SECTION 1.03. Accounting Terms 13
----------------
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 13
----------------------------------
SECTION 2.02. Making the Advances 14
-------------------
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 15
------------------------------------------------------------------
SECTION 2.04. Fees 16
----
SECTION 2.05. Termination or Reduction of the Commitments 17
-------------------------------------------
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings 17
---------------------------------------------------
SECTION 2.07. Interest on Advances 17
--------------------
SECTION 2.08. Interest Rate Determination 18
---------------------------
SECTION 2.09. Optional Conversion of Advances 19
-------------------------------
SECTION 2.10. Prepayments of Advances 19
-----------------------
SECTION 2.11. Increased Costs 20
---------------
SECTION 2.12. Illegality 20
----------
SECTION 2.13. Payments and Computations 21
-------------------------
SECTION 2.14. Taxes 22
-----
SECTION 2.15. Sharing of Payments, Etc. 23
------------------------
SECTION 2.16. Evidence of Debt 24
----------------
SECTION 2.17. Use of Proceeds 24
---------------
SECTION 2.18. Increase in the Aggregate Commitments 24
-------------------------------------
SECTION 2.19. Extension of Termination Date 26
-----------------------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 27
-----------------------------------------------------
SECTION 3.02. Initial Advance to Each Designated Subsidiary 28
---------------------------------------------
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and Commitment Increase. 29
------------------------------------------------------------------------
SECTION 3.04. Determinations Under Section 3.01 29
---------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 30
---------------------------------------------
ARTICLE V
SECTION 5.01. Affirmative Covenants 31
---------------------
SECTION 5.02. Negative Covenants 33
------------------
SECTION 5.03. Financial Covenants 35
-------------------
ARTICLE VI
SECTION 6.01. Events of Default 36
-----------------
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 38
--------------------------------------------------------
ARTICLE VII
SECTION 7.03. Unconditional Guaranty 38
----------------------
SECTION 7.02. Guaranty Absolute 38
-----------------
SECTION 7.03. Waivers and Acknowledgments 39
---------------------------
SECTION 7.04. Subrogation 40
-----------
SECTION 7.05. Subordination 40
-------------
SECTION 7.06. Continuing Guaranty; Assignments 41
--------------------------------
ARTICLE VIII
SECTION 8.01. Authorization and Action 41
------------------------
SECTION 8.02. Agent's Reliance, Etc. 41
---------------------
SECTION 8.03. Citibank and Affiliates 42
-----------------------
SECTION 8.04. Lender Credit Decision 42
----------------------
SECTION 8.05. Indemnification 42
---------------
SECTION 8.06. Successor Agent 43
---------------
SECTION 8.07. Sub-Agent 43
---------
SECTION 8.08. Other Agents. 43
-------------
ARTICLE IX
SECTION 9.01. Amendments, Etc. 43
---------------
SECTION 9.02. Notices, Etc. 44
------------
SECTION 9.03. No Waiver; Remedies 45
-------------------
SECTION 9.04. Costs and Expenses 45
------------------
SECTION 9.05. Right of Set-off 46
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SECTION 9.06. Binding Effect 46
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SECTION 9.07. Assignments and Participations 46
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SECTION 9.08. Confidentiality 48
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SECTION 9.09. Designated Subsidiaries 48
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SECTION 9.10. Governing Law 49
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SECTION 9.11. Execution in Counterparts 49
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SECTION 9.12. Judgment 49
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SECTION 9.13. Jurisdiction, Etc. 50
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SECTION 9.14. Substitution of Currency 50
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SECTION 9.15. No Liability of the Issuing Banks 50
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SECTION 9.16. Patriot Act Notice 51
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SECTION 9.17. Power of Attorney 51
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SECTION 9.18. Waiver of Jury Trial 52
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
Exhibit F - Form of Opinion of Counsel to a Designated Subsidiary
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee". * Required if the
Assignee is an Eligible Assignee solely by reason of clause (iii) of the
definition of "Eligible Assignee".