Form 8-K EASTMAN CHEMICAL CO For: Dec 15
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):
December 15, 2016
EASTMAN CHEMICAL COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 1-12626 | 62-1539359 | ||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||
200 South Wilcox Drive, Kingsport, TN | 37662 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrant's Telephone Number, Including Area Code: (423) 229-2000
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:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 1.01. Entry into a Material Definitive Agreement and Item 2.03. Creation of a Direct Financial Obligation
Background
As previously reported, on November 21, 2016 Eastman Chemical Company (the “Company” or “Eastman”) issued and sold €200 million (or $218 million based on the euro/U.S. dollar exchange rate as of November 10, 2016 as published by the U.S. Federal Reserve Board (the “exchange rate”)) principal amount of 1.50% notes due 2023 (the “2023 Notes”) and €500 million (or $544 million based on the exchange rate) principal amount of 1.875% notes due 2026 (the “2026 Notes” and, together with the 2023 Notes, the “Notes”) under the Company’s Registration Statement on Form S-3 (Registration No. 333-204119) filed with, and declared effective by, the Securities and Exchange Commission (the “SEC”) on May 13, 2015 (the “Registration Statement”) and the issuer free writing prospectus and prospectus supplement (the “Prospectus Supplement”) filed with the SEC on November 16, 2016 and November 17, 2016, respectively.
As described in the Prospectus Supplement and as previously reported, the Company has used the net proceeds from the sale of the Notes to:
•pay the purchase price in the cash tender offer for $400 million combined aggregate principal amount of certain outstanding debt securities (the “Tender Offer”), as described below;
•pay the redemption price for the $160 million outstanding aggregate principal amount of its 6.30% Notes due 2018 (the “2018 Notes”), as described below; and
•pay a portion of the redemption price for the $500 million outstanding aggregate principal amount of its 2.4% Notes due 2017 (the “2017 Notes”), as described below.
The Company on November 22, 2016 accepted for purchase, and paid for, an aggregate of $10,714,000 principal amount of the Company’s 7 5/8% Debentures due 2024, $27,529,000 principal amount of 7.60% Debentures due 2027, $46,794,000 principal amount of 7 1/4% Debentures due 2024, $64,973,000 4.5% Notes due 2021, $150,000,000 principal amount of 3.6% Notes due 2022 and $100,008,000 principal amount of 3.80% Notes due 2025.
The Company redeemed the 2018 Notes on November 30, 2016 at the redemption price set forth in the notice of redemption.
The Company redeemed the 2017 Notes on December 17, 2016 at the redemption price set forth in the notice of redemption. To provide a portion of the redemption price for the 2017 Notes, as described below on December 15, 2016 the Company entered into a Five-Year Senior Term Loan Credit Agreement (the “2016 Term Loan Agreement”) and borrowed $300 million under the 2016 Term Loan Agreement (the “2016 Term Loan”).
2016 Term Loan Agreement and 2016 Term Loan
The 2016 Term Loan Agreement with initial lenders Wells Fargo Bank, National Association, Citibank, N.A., Morgan Stanley Bank, N.A., SunTrust Bank, Bank of America, N.A., Barclays Bank PLC, JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., PNC Bank, National Association, Sumitomo Mitsui Banking Corporation, City National Bank, The Northern Trust Company, Regions Bank, and The Bank of Tokyo-Mitsubishi UFJ, Ltd. provides for a $300 million term loan facility, with 2016 Term Loan borrowings to be used for general corporate purposes.
The 2016 Term Loan borrowings are unsecured, and bear interest at a variable base rate or a variable Eurodollar rate based on the London Interbank Offered Rate (“LIBOR”), at Eastman’s election. Interest on base rate loans will be at varying spreads above quoted market rates, depending on Eastman’s unsecured credit rating. Interest on Eurodollar rate loans will be determined by reference to LIBOR plus an applicable margin, depending on Eastman’s unsecured credit rating.
The 2016 Term Loan borrowings amortize in quarterly installments from December 15, 2016 as follows: (1) 0% annually in the first year; (2) 2.5% annually in the second year; (3) 7.5% annually in the third year; and (4) 10% annually in the fourth and fifth year. The 2016 Term Loan borrowings outstanding are due and payable on December 15, 2021.
The 2016 Term Loan Agreement contains customary events of default, representations, warranties, and covenants, including the maintenance of a ratio of Debt to Consolidated EBITDA (as defined in the 2016 Term Loan Agreement) for any four consecutive quarters of not greater than 3.5 to 1. Eastman has agreed to pay the lenders customary fees, including a commitment fee, under the 2016 Term Loan Agreement.
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The foregoing description of the material terms of the 2016 Term Loan Agreement is qualified in its entirety by the 2016 Term Loan Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by this reference.
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Item 9.01 Financial Statements and Exhibits:
(d) Exhibits
Number | Exhibit | |
10.1 | Five-Year Senior Term Loan Credit Agreement, dated December 15, 2016, by and among Eastman Chemical Company, the initial lenders named therein, Wells Fargo Bank, National Association as administrative agent, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., Morgan Stanley Senior Funding Inc., and SunTrust Robinson Humphrey, Inc. as joint lead arrangers and joint book runners, and Citibank, N.A., Morgan Stanley Senior Funding Inc., and Suntrust Bank as syndication agents. |
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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 hereunto duly authorized.
EASTMAN CHEMICAL COMPANY | ||||
By: | /s/ H. Keith Jennings | |||
Name: | H. Keith Jennings | |||
Title: | Vice President and Treasurer | |||
Date: December 21, 2016 |
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Exhibit 10.1 to Eastman Chemical Company Current Report on Form 8-K Dated
December 15, 2016
Five-Year Senior Term Loan Credit Agreement dated December 15, 2016
NYDOCS02/1106507.4 2
U.S. $300,000,000
FIVE-YEAR SENIOR TERM LOAN CREDIT AGREEMENT
Dated as of December 15, 2016
Among
EASTMAN CHEMICAL COMPANY
as Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
WELLS FARGO SECURITIES, LLC
CITIGROUP GLOBAL MARKETS INC.
MORGAN STANLEY SENIOR FUNDING INC.
and
SUNTRUST ROBINSON HUMPHREY, INC.
as Joint Lead Arrangers and Joint Bookrunners
and
CITIBANK, N.A.
MORGAN STANLEY SENIOR FUNDING INC.
and
SUNTRUST BANK
as Syndication Agents
TABLE OF CONTENTS
Page
DEFINITIONS AND ACCOUNTING TERMS
AMOUNTS AND TERMS OF THE ADVANCES
CONDITIONS TO EFFECTIVENESS AND LENDING
REPRESENTATIONS AND WARRANTIES
COVENANTS OF THE BORROWER
EVENTS OF DEFAULT
THE AGENT
MISCELLANEOUS
Schedules
Schedule I Commitments
Schedule 4.01(d) -Disclosed Litigation
Schedule 4.01(i) -Tax Sharing Agreements
Schedule 4.01(m) -Environmental Matters
Schedule 5.01(d) -Tax Filings with Any Person Other than the Borrower and its Subsidiaries
Schedule 5.02(a) -Leases
Exhibits
Exhibit A -Form of Note
Exhibit B -Form of Notice of Borrowing
Exhibit C -Form of Assignment and Assumption
Exhibit D -Form of Opinion of Counsel for the Borrower
Exhibit E -Form of Compliance Certificate
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FIVE-YEAR SENIOR TERM LOAN CREDIT AGREEMENT
Dated as of December 15, 2016
EASTMAN CHEMICAL COMPANY, a Delaware corporation (the “Borrower”), the
banks, financial institutions and other institutional lenders (the “Initial Lenders”) listed on the
signature pages hereof, WELLS FARGO SECURITIES, LLC, CITIGROUP GLOBAL
MARKETS INC., MORGAN STANLEY SENIOR FUNDING INC. and SUNTRUST
ROBINSON HUMPHREY, INC., as joint lead arrangers and joint bookrunners, CITIBANK,
N.A., MORGAN STANLEY SENIOR FUNDING, INC. AND SUNTRUST BANK, as
syndication agents, and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells
Fargo”), as administrative agent (the “Agent”) for the Lenders (as hereinafter defined), agree as
follows:
DEFINITIONS AND ACCOUNTING TERMS
Certain Defined Terms. As used in this Term Loan 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):
“Acquisition” means, as to any Person, the purchase or other acquisition (in one
transaction or a series of transactions, including through a merger) of all of the equity interests of
another Person or all or substantially all of the property, assets or business of another Person or
of the assets constituting a business unit, line of business or division of another Person.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Agent.
“Advance” means an advance by a Lender to the Borrower as part of a Borrowing and
refers to a Base Rate Advance or Eurodollar 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) the account of the Agent maintained by the Agent at Wells
Fargo at its office at 1525 West WT Harris Blvd., Charlotte, NC 28262, Account No.
01104331628807, Attention: Financial Cash Controls or (b) such other account of the Agent as
is designated in writing from time to time by the Agent to the Borrower and the Lenders for such
purpose.
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“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction
applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery
or corruption (including, without limitation, the Foreign Corrupt Practices Act) or money
laundering.
“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 Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
“Applicable Margin” means the margin determined by reference to the Public Debt
Rating set forth below, expressed as a percentage:
Applicable Margin:
Public Debt Rating
S&P/Moody’s
Applicable Margin to
Eurodollar Rate Advances
(in basis points)
Applicable Margin to Base
Rate Advances (in basis
points)
Level I
A- or A3
or above
100.0 0
Level II
BBB+ or Baa1 112.5 12.5
Level III
BBB or Baa2 125.0 25.0
Level IV
BBB- or Baa3 150.0 50.0
Level V
Lower than Level IV 175.0 75.0
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
“Approved Lender” means any Existing Lender or any Affiliate or Approved Fund of
an Existing Lender.
“Arrangers” means Wells Fargo Securities, LLC, Citigroup Global Markets Inc.,
Morgan Stanley Senior Funding, Inc. and SunTrust Robinson Humphrey Inc.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 8.07), and accepted by the Agent, in substantially the form of Exhibit C or any other
form approved by the Agent.
“Assuming Lender” has the meaning specified in Section 2.18(c).
“Assumption Agreement” has the meaning specified in Section 2.18(d)(ii).
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“Authorized Officer” means the Chief Executive Officer, Chief Financial Officer, the
General Counsel, the Secretary, the Controller, the Treasurer and such other persons designated
by the Borrower in writing to the Agent by the Treasurer of the Borrower and acceptable to the
Agent.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,”
as amended from time to time, and any successor statute or statutes.
“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 highest of:
(a) the rate of interest announced publicly by Wells Fargo in New York,
New York, from time to time, as Wells Fargo’s prime rate;
(b) ½ of one percent per annum above the Federal Funds Rate;
(c) the rate calculated by the Intercontinental Exchange Benchmark
Administration Ltd (ICE) (or the successor thereto if the ICE Benchmark Administration
is no longer making such a rate available) appearing on the Reuters LIBOR01 page (or on
any successor or substitute page of such service) at approximately 11:00 a.m. London
time on such day or, if no such rate is published on such day, the next preceding day on
which a rate is published) applicable to Dollars for a period of one month (“One Month
LIBOR”) plus 1.00%; provided that, if One Month LIBOR shall be less than zero, such
rate shall be deemed to be zero for purposes of this Term Loan Agreement; and
(d) 0%.
“Base Rate Advance” means an Advance denominated in Dollars that bears interest as
provided in Section 2.06(a)(i).
“Borrower” has the meaning specified in the recital of parties hereto.
“Borrowing” means a borrowing consisting of simultaneous Advances of the same Type
made by each of the Lenders pursuant to Section 2.01.
“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 Eurodollar
Rate Advances, on which dealings are carried on in the London interbank market and banks are
open for business in London.
“Capitalized Lease” means any lease of property, real, personal or mixed, the
obligations under which are capitalized on the consolidated balance sheet of the Borrower and its
Subsidiaries in accordance with GAAP.
“Capitalized Lease Obligations” means all obligations of the Borrower and its
Subsidiaries under or in respect of Capitalized Leases.
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“Change in Control” means a change in control of the Borrower of a nature that would
be required to be reported (assuming such event has not been previously reported) in response to
Item 1(a) of the Current Report on Form 8-K, pursuant to Section 13 or 15(d) of the Exchange
Act; provided that, without limitation, a Change in Control shall be deemed to have occurred at
such time as (i) any “person” within the meaning of Section 14(d) of the Exchange Act, other
than the Borrower, a Subsidiary of the Borrower, or any employee benefit plan(s) sponsored by
the Borrower or any Subsidiary of the Borrower, is or has become the “beneficial owner,” as
defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of 30% or more of the
combined voting power of the outstanding securities of the Borrower ordinarily having the right
to vote at the election of directors, or (ii) individuals who constituted the Board of Directors of
the Borrower on the Effective Date (the “Incumbent Board”) have ceased for any reason to
constitute at least a majority thereof; provided further that any person becoming a director
subsequent to the Effective Date whose election, or nomination for election by the Borrower’s
shareholders, was approved by a vote of at least a majority of the directors comprising the
Incumbent Board (either by a specific vote or by approval of the proxy statement of the
Borrower in which such person is named as a nominee for director without objection to such
nomination) shall be, for purposes of this definition, considered as though such person were a
member of the Incumbent Board.
“Commitment” means as to any Lender (a) the Dollar amount set forth opposite such
Lender’s name on Schedule I hereto as such Lender’s “Commitment” or (b) if such Lender has
entered into any Assignment and Assumption, the Dollar amount set forth for such Lender in the
Register maintained by the Agent pursuant to Section 8.07(c), as such amount may be reduced
pursuant to Section 2.04.
“Commitment Date” has the meaning specified in Section 2.18(b).
“Communications” has the meaning specified in Section 8.02(d)(ii).
“Confidential Information” has the meaning specified in Section 8.08.
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Consolidated EBT” means, for any period, the total revenues of the Borrower and its
Subsidiaries for such period, after deducting therefrom the cost of goods sold and all operating
expenses for such period, including research and development and sales, general and
administrative costs and interest expense for such period, all determined in accordance with
GAAP on a consolidated basis, excluding any non-cash mark-to-market adjustment (positive or
negative) for pension or other post-retirement gains or expenses for such period.
“Consolidated EBITDA” means, for any period, the Consolidated EBT of the Borrower
and its Subsidiaries for such period, plus (a) the following to the extent deducted in calculating
such Consolidated EBT, but without duplication: (i) amounts deducted in arriving at such
Consolidated EBT in respect of non-cash nonrecurring charges, (ii) depreciation and
amortization allowances, (iii) Consolidated Interest Expense for such period, (iv) other expenses
or losses, including purchase accounting entries such as inventory adjustment to fair value,
reducing such Consolidated EBT which do not represent a cash item in such period or any future
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period, and (v) fees and expenses incurred in connection with any proposed or actual
acquisitions, investments, asset sales or divestitures in each case that are expensed, and minus (b)
(i) amounts added in arriving at such Consolidated EBT in respect of cash nonrecurring charges
paid during such period and (ii) other gains or additions, including purchase accounting entries
such as inventory adjustment to fair value, increasing such Consolidated EBT which do not
represent a cash item in such period or any future period. For the purpose of calculating
Consolidated EBITDA for any period, if during such period the Borrower or any Subsidiary shall
have made an Acquisition, Consolidated EBITDA for such period shall be calculated after giving
pro forma effect thereto as if such Acquisition occurred on the first day of such period.
“Consolidated Interest Expense” means, for any period, all interest charges (including
amortization of debt discount and expense and the imputed interest component of Capitalized
Lease Obligations properly chargeable to income during such period) for the Borrower and its
Subsidiaries, on a consolidated basis, all determined in accordance with GAAP.
“Consolidated Net Tangible Assets” means, at any particular time, Consolidated
Tangible Assets at such time after deducting therefrom all current liabilities, except for (i) notes
and loans payable, and (ii) current maturities of the principal component of Capitalized Lease
Obligations, all as set forth on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries and computed in accordance with GAAP.
“Consolidated Tangible Assets” means, at any particular time, the aggregate amount of
all assets (less applicable reserves and other properly deductible items) after deducting therefrom
all goodwill, trade names, trademarks, patents, unamortized debt discount and expenses (to the
extent included in said aggregate amount of assets) and other like intangibles, as set forth on the
most recent consolidated balance sheet of the Borrower and its Consolidated Subsidiaries and
computed in accordance with GAAP.
“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of
one Type into Advances of the other Type pursuant to Section 2.07 or Section 2.08.
“Debt” of any Person means (a) the sum of, without duplication, (i) all indebtedness of
such Person for borrowed money, (ii) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables incurred in the ordinary course of
business of such Person), (iii) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (iv) 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), (v) all Debt of others
referred to in clauses (i) through (iv) above 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 minus (b) the sum of, (i) cash
and cash equivalents that are escrowed for the purpose of repayment of Debt, all of the foregoing
determined in accordance with GAAP, and (ii) indebtedness, if any, arising in connection with
receivables securitization programs in an aggregate principal amount not to exceed $300,000,000
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at the time outstanding (for purposes of this clause, the “principal amount” of a receivables
securitization program shall mean the Invested Amounts).
“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.
“Defaulting Lender” means at any time (i) any Lender that has failed for two or more
Business Days to comply with its obligations under this Term Loan Agreement to make an
Advance or make any other payment due hereunder (each, a “funding obligation”), unless such
Lender has notified the Agent and the Borrower in writing that such failure is the result of such
Lender’s determination that one or more conditions precedent to funding has not been satisfied
(which conditions precedent, together with the applicable default, if any, will be specifically
identified in such writing), (ii) any Lender that has notified the Agent or the Borrower in writing,
or has stated publicly, that it does not intend to comply with its funding obligations hereunder,
unless such writing or statement states that such position is based on such Lender’s
determination that one or more conditions precedent to funding cannot be satisfied (which
conditions precedent, together with the applicable default, if any, will be specifically identified in
such writing or public statement), (iii) any Lender that has defaulted on its funding obligations
under other loan agreements or credit agreements generally under which it has commitments to
extend credit or that has notified, or whose Parent Company has notified, the Agent or the
Borrower in writing, or has stated publicly, that it does not intend to comply with its funding
obligations under loan agreements or credit agreements generally unless such Lender has notified
the Agent and the Borrower in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding has not been satisfied (which
conditions precedent, together with the applicable default, if any, will be specifically identified in
such writing), (iv) any Lender that has, for three or more Business Days after written request of
the Agent or the Borrower, failed to confirm in writing to the Agent and the Borrower that it will
comply with its prospective funding obligations hereunder (provided that such Lender will cease
to be a Defaulting Lender pursuant to this clause (iv) upon the Agent’s and the Borrower’s
receipt of such written confirmation), or (v) any Lender with respect to which a Lender
Insolvency Event has occurred and is continuing with respect to such Lender or its Parent
Company; provided that a Lender Insolvency Event shall not be deemed to occur with respect to
a Lender or its Parent Company solely as a result of the acquisition or maintenance of an
ownership interest in such Lender or Parent Company by a governmental authority or
instrumentality thereof where such action does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Agent that a Lender is a
Defaulting Lender under any of clauses (i) through (v) above will be conclusive and binding
absent manifest error, and such Lender will be deemed to be a Defaulting Lender upon
notification of such determination by the Agent to the Borrower and the Lenders.
“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” in its Administrative Questionnaire
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delivered to the Agent, or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
“Domestic Subsidiary” means any Subsidiary of the Borrower incorporated under the
laws of the United States of America, any state thereof or the District of Columbia.
“Effective Date” has the meaning specified in Section 3.01.
“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 8.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under
Section 8.07(b)(iii)Section 8.07(b)(iii)).
“Environmental Affiliate” means, with respect to any Person, any other Person whose
liability for any Environmental Claim such Person has retained, assumed or otherwise become
liable for (contingently or otherwise), either contractually or by operation of law.
“Environmental Approvals” means any permit, license, approval, ruling, variance,
exemption or other authorization required under applicable Environmental Laws.
“Environmental Claim” means, with respect to any Person, any notice, claim, demand
or similar written communication by any other Person alleging potential liability for
investigatory costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, fines or penalties arising out of, based on or resulting from
(a) the presence, or release into the environment, of any Material of Environmental Concern at
any location, whether or not owned by such Person or (b) circumstances forming the basis of any
violation, or alleged violation of any Environmental Law.
“Environmental Laws” means all federal, state, local and foreign laws and regulations
relating to pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface strata), including
without limitation, laws and regulations relating to emissions, discharges, releases or threatened
releases of hazardous or toxic materials, or otherwise relating to the manufacture, processing,
distribution, use treatment, storage, disposal, transport or handling of hazardous or toxic
materials.
“ERISA” means the Employment Retirement Income Security Act of 1974, as amended
from time to time. Section references to ERISA are to ERISA, as in effect at the date of this
Term Loan Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
“ERISA Controlled Group” means a group consisting of any ERISA Person and all
members of a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control with such Person that, together with such Person, are
treated as a single employer under regulations of the PBGC.
“ERISA Person” has the meaning set forth in Section 3(9) of ERISA for the term
“person.”
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“ERISA Plan” means (a) any Plan that (i) is not a Multiemployer Plan and (ii) has
Unfunded Benefit Liabilities in excess of $1,000,000 and (b) any Plan that is a Multiemployer
Plan.
“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.
“Eurodollar Lending Office” means the office of each Lender which shall be
maintaining its Eurodollar Rate Advances.
“Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum determined by reference to the rate calculated by the
Intercontinental Exchange Benchmark Administration Ltd (ICE) (or the successor thereto if the
ICE Benchmark Administration is no longer making such a rate available) appearing on the
Reuters LIBOR page (or on any successor or substitute page of such service) as the London
interbank offered rate for deposits in Dollars 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 by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period; provided that, if the Eurodollar Rate would be less than zero based on the
foregoing calculation, such rate shall be deemed to be zero for purposes of this Term Loan
Agreement.
“Eurodollar Rate Advance” means an Advance denominated in Dollars that bears
interest as provided in Section 2.06(a)(ii).
“Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar 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 Eurodollar Rate Advances is determined) having a term
equal to such Interest Period.
“Events of Default” has the meaning specified in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Credit Agreement” means the Second Amended and Restated Five-Year
Credit Agreement dated as of October 9, 2014 among the Borrower, Citibank N.A., as
administrative agent, and the other lenders and agents party thereto, as amended, restated,
supplemented or otherwise modified from time to time.
“Existing Lender” means any lender party to the Existing Credit Agreement on the
Effective Date or that subsequently becomes a lender party to the Existing Credit Agreement.
9
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the
date of this Term Loan Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations
or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1)
of the Internal Revenue Code.
“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, 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; provided that, if the Federal Funds Rate shall be
less than zero, such rate shall be deemed to be zero for purposes of this Term Loan Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System
as constituted from time to time.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions
of credit in the ordinary course of business.
“GAAP” means generally accepted accounting principles specifically as applied in the
preparation of the financial statements referred to in Section 4.01(e).
“Increase Date” has the meaning specified in Section 2.18(a).
“Increasing Lender” has the meaning specified in Section 2.18(b).
“Indebtedness” of any Person means, without duplication, (a) all indebtedness (including
principal, interest, fees and charges) of such Person for borrowed money or for the deferred
purchase price (or a portion thereof) of property or services (other than trade payables incurred in
the ordinary course of business of such Person), (b) all indebtedness of such Person evidenced by
a note, bond, debenture or similar instrument, (c) the principal component of all Capitalized
Lease Obligations of such Person and all obligations of such Person under any other lease to the
extent that the then present value of the minimum rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee, (d) the face amount of all
letters of credit issued for the account of such Person and, without duplication, all unreimbursed
amounts drawn thereunder, (e) all indebtedness of any other Person secured by any Lien on any
property owned by such Person, whether or not such indebtedness has been assumed, (f)
payment obligations under any interest rate protection agreements (including without limitation,
any interest rate swaps, caps, floors, collars and similar agreements) and currency swaps and
similar agreements, (g) payment obligations under any facility for the sale or financing of
receivables and (h) any indebtedness of any other Person of the character referred to in clauses
(a) through (g) with respect to which such Person has become liable by way of any guarantee,
similar contingent obligation or other arrangement which has the effect of assuring payment.
10
“Interest Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar 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, with respect to Eurodollar Rate Advances, 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 the 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
(iii) of this definition, twelve months, as the 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:
(i) the Borrower may not select any Interest Period that ends after the
Maturity Date;
(ii) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same duration;
(iii) in the case of any such Borrowing, the Borrower shall not be entitled to
select an Interest Period having a duration of 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 Term Loan 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 the Borrowing shall be one, two, three or six months, as specified by
the Borrower in the Notice of Borrowing as the desired alternative to an Interest Period of
twelve months;
(iv) 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
(v) 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.
11
“Invested Amounts” means the amounts invested by investors that are not Affiliates of
the Borrower in connection with any receivables securitization program and paid to the Borrower
or its Subsidiaries, as reduced by the aggregate amounts received by such investors from the
payment of receivables and applied to reduce such invested amounts.
“Lender Insolvency Event” means that (a) a Lender or its Parent Company is insolvent,
or is generally unable to pay its debts as they become due, or admits in writing its inability to pay
its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b)
such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization,
liquidation or similar proceeding or a Bail-In Action, or a receiver, trustee, conservator,
intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company,
or such Lender or its Parent Company has taken any action in furtherance of or indicating its
consent to or acquiescence in any such proceeding or appointment.
“Lenders” means the Initial Lenders, each Assuming Lender that shall become a party
hereto pursuant to Section 2.18 and each Person that shall become a party hereto pursuant to
Section 8.07.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), or preferential payment arrangement, priority or other
security agreement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any financing lease having substantially the
same effect as any of the foregoing and the filing of any financing statement of similar
instrument under the Uniform Commercial Code or comparable law of any jurisdiction, domestic
or foreign.
“Loan Documents” means this Term Loan Agreement and the Notes.
“Margin Stock” has the meaning provided to such term in Regulation U.
“Material Adverse Effect” means a material adverse effect upon (a) the business,
condition (financial or otherwise) or operations of the Borrower and its Subsidiaries taken as a
whole or (b) the ability of the Borrower to perform, or of the Agent or any of the Lenders to
enforce, any of the Obligations.
“Material Subsidiary” means each Subsidiary of the Borrower which meets any of the
following conditions: (a) the Borrower’s and its other Subsidiaries’ investments in and advances
to such Subsidiary exceed 10% of the total assets of the Borrower and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year, (b) the Borrower’s and its
other Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of
such Subsidiary exceeds 10% of the total assets of the Borrower and its Subsidiaries consolidated
as of the end of the most recently completed fiscal year, or (c) the Borrower’s and its other
Subsidiaries’ equity in the income from the continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principles (excluding non-
recurring items and special charges) of such Subsidiary exceeds 10% of such income of the
Borrower and its Subsidiaries consolidated for the most recently completed fiscal year.
12
“Materials of Environmental Concern” means all chemicals, pollutants, contaminants,
wastes and otherwise hazardous or toxic substances, petroleum and petroleum products regulated
by applicable Environmental Laws.
“Maturity Date” means the fifth anniversary of the Effective Date (or if such day is not a
Business Day, the next preceding Business Day).
“Multiemployer Plan” means a Plan which is a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA.
“Moody’s” means Moody’s Investors Service Inc.
“Non-Approving Lender” has the meaning specified in Section 2.17(b).
“Note” means a promissory note of the Borrower payable to the order of any Lender,
delivered pursuant to a request made under Section 2.15 in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender to the Borrower.
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Obligations” means all amounts owing to the Agent or any Lender (whether a
contingent obligation or otherwise) pursuant to the terms of this Term Loan Agreement or any
Note.
“Parent Company” means, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, or if such Lender does
not have a bank holding company, then any corporation, association, partnership or other
business entity owning, beneficially or of record, directly or indirectly, a majority of the shares
of such Lender.
“Participant” has the meaning assigned to such term in clause (d) of Section 8.07.
“Participant Register” has the meaning assigned to such term in clause (d) of Section
8.07.
“PATRIOT Act” has the meaning assigned to such term in Section 8.13.
“PBGC” means the Pension Benefit Guaranty Corporation established under ERISA, or
any successor thereto.
“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 any employee benefit plan, covered by Title IV of ERISA, the funding
requirements of which: (a) were the responsibility of the Borrower or a member of its ERISA
Controlled Group at any time within the five years immediately preceding the date hereof, (b) are
13
currently the responsibility of the Borrower or a member of its ERISA Controlled Group, or (c)
hereafter become the responsibility of the Borrower or a member of its ERISA Controlled
Group, including any such plans as may have been, or may hereafter be, terminated for whatever
reason.
“Principal Property” means any manufacturing plant or manufacturing facility (in each
case taken as a whole) which is (a) owned by the Borrower or any Principal Subsidiary, (b)
located within the continental United States, and (c) in the opinion of the Board of Directors of
the Borrower, material to the total business conducted by the Borrower and the Principal
Subsidiaries taken as a whole.
“Principal Subsidiary” means any Subsidiary of the Borrower (a) substantially all the
property of which is located within the continental United States and (b) which owns any
Principal Property; provided that the term “Principal Subsidiary” shall not include any such
Subsidiary which is principally engaged in leasing or in financing receivables, or which is
principally engaged in financing the Borrower’s operations outside the continental United States
of America.
“Public Debt Rating” means, as of any date, the lowest 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 Borrower. 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 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 will be set in
accordance with Level V under the definition of “Applicable Margin”; (c) if the ratings
established by S&P and Moody’s shall fall within different levels, the Applicable Margin shall
be based upon the higher rating; (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 such
Lender’s pro rata share of such amount determined based on such Lender’s Commitments at
such time or, if the Commitments have been terminated, such Lender’s Advances at such time.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person’s Affiliates.
“Register” has the meaning specified in Section 8.07(c).
“Removal Effective Date” has the meaning specified in Section 7.07(b)Section 7.07(c).
“Reportable Event” has the meaning set forth in Section 4043 of ERISA (other than a
Reportable Events as to which the provision of 30 days’ notice to the PBGC is waived under
14
applicable regulations), or is the occurrence of any of the events described in Section 4062(e) or
4063(a) of ERISA.
“Required Lenders” means at any time Lenders owed at least a majority in interest of
the then aggregate unpaid principal amount 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
aggregate amount of the Commitments of all Lenders, provided that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination of Required
Lenders at such time the Commitments of such Lender at such time.
“Resignation Effective Date” has the meaning specified in Section 7.07(a).
“Responsible Officer” means the Chief Financial Officer, the Chief Accounting Officer,
the Treasurer or any Assistant Treasurer of the Borrower.
“Restricted Subsidiary” means, for purposes of Section 5.02(d) hereof, a wholly-owned
Subsidiary of the Borrower substantially all of the assets of which are located in the United
States (excluding territories or possessions) and which owns a Principal Property; provided
however, that the term Restricted Subsidiary shall not include any Subsidiary that is principally
engaged in (a) the business of financing; (b) the business of owning, buying, selling, leasing,
dealing in or developing real property; or (c) the business of exporting goods or merchandise
from or importing goods or merchandise into the United States.
“S&P” means S&P Global Ratings, a division of Standard & Poor’s Financial Services
LLC.
“Sanctions” means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State or (b) the United Nations Security Council, the European Union or
Her Majesty’s Treasury of the United Kingdom.
“Sanctioned Country” means, at any time, a country or territory which is or whose
government is the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person or vessel listed in any
Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control
of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations
Security Council, the European Union or any EU member state, (b) any Person operating,
organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such
Person.
“SPC” has the meaning specified in Section 8.07(g) hereto.
“Subsidiary” means, with respect to any Person, any corporation or other entity in which
such Person has ownership or control sufficient under GAAP to require such corporation or
entity to be consolidated with such Person for financial reporting purposes.
15
“Term Loan Agreement” means this Five-Year Senior Term Loan Credit Agreement.
“Termination Event” means (a) a Reportable Event, or (b) the initiation of any action by
the Borrower, any member of the Borrower’s ERISA Controlled Group or any ERISA Plan
fiduciary to terminate an ERISA Plan or the treatment of an amendment to an ERISA Plan as a
termination under ERISA, or (c) the institution of proceedings by the PBGC under Section 4042
of ERISA to terminate an ERISA Plan or to appoint a trustee to administer any ERISA plan,
except, in any such case, where the result thereof could not reasonably be expected to have a
Material Adverse Effect.
“Type” means, as to any Advance, its nature as a Base Rate Advance or a Eurodollar
Rate Advance.
“Unfunded Benefit Liabilities” means with respect to any Plan at any time, the amount
(if any) by which (a) the present value of all benefit liabilities under such Plan as defined in
Section 4001(a)(16), of ERISA, exceeds (b) the fair market value of all Plan assets allocable to
such benefits, all determined as of the then most recent valuation date for such Plan (on the basis
of the interest rate and other assumptions used to determine the current liabilities of the Plan as
required under Code Section 430.
“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.
Computation of Time Periods. In this Term Loan 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”.
Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be construed, and all
computations of amounts and ratios referred to herein shall be made (i) without giving effect to
any election under Accounting Standards Codification 825-10-25 (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar result or effect) to
value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as
defined therein and (ii) in a manner such that any obligations relating to a lease that was
accounted for by a Person as an operating lease as of the Effective Date and any similar lease
entered into after the Effective Date by such Person shall be accounted for as obligations relating
to an operating lease and not as Capitalized Lease Obligations.
AMOUNTS AND TERMS OF THE ADVANCES
Commitments. Each Lender severally agrees, on the terms and conditions
set forth in this Term Loan Agreement, to make an Advance to the Borrower on the Effective
Date in a principal amount equal to its ratable portion of the amount requested in the related
16
Notice of Borrowing (but in any event, not to exceed the amount of its Commitment). Amounts
borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.
Making the Advance. (a) 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 Eurodollar Rate Advances or
(y) 1:00 P.M. (New York City time) on the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which shall give to
each Lender prompt notice thereof by telecopier. Each such notice of a Borrowing (a “Notice of
Borrowing”) shall be made in writing or by electronic mail 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 Eurodollar Rate Advances, initial Interest Period for each
such Advance. Each Lender shall, before 3:00 P.M. (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to the Agent at the
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 at the Agent’s address
referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, the Borrower
may not select Eurodollar Rate Advances for any Borrowing if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.07 or 2.11.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower 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 (including 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 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 the 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 the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the higher of (A) the interest
rate applicable at the time to the 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, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so
17
repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this
Term Loan 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.
Fees. The Borrower shall pay to the Agent for its own account such fees
as may from time to time be agreed between the Borrower and the Agent.
Termination or Reduction of the Commitments. (a) Prior to the Effective
Date, the Borrower shall have the right, upon at least three Business Days’ notice to the Agent, to
terminate in whole or reduce ratably in part the 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.
(b) All unused Commitments shall automatically terminate after the Advances are
made on the Effective Date.
Repayment of Advances. The Borrower shall repay to the Agent for the
ratable account of the Lenders (which repayments shall be adjusted from time to time pursuant to
Section 2.09) (a) on each March 31, June 30, September 30 or December 31 occurring during
each period set forth below (or if such day is not a Business Day, the next preceding Business
Day), a principal amount in respect of the Advances made on the Effective Date plus the
principal amount of Advances made on any Increase Date equal to (x) the outstanding principal
amount of the Advances on the Effective Date divided by (y) four and multiplied by (z) the
percentage set forth below opposite each such date and (b) on the Maturity Date, the aggregate
principal amount of the Advances then outstanding.
Period Percentage
Effective Date through but excluding the 1st
anniversary of the Effective Date
0%
1st anniversary of the Effective Date through
but excluding the 2nd anniversary of the
Effective Date
2.5%
2nd anniversary of the Effective Date through
but excluding the 3rd anniversary of the
Effective Date
7.5%
3rd anniversary of the Effective Date through
but excluding the 4th anniversary of the
Effective Date
10%
4th anniversary of the Effective Date through
but excluding the Maturity Date
10%
18
Interest on Advances. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance made to it and 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, 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) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such
Advance plus (y) the Applicable Margin 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 Eurodollar 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, and upon the request of the Required Lenders shall, require the
Borrower 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 2% 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 2% 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 the acceleration of the Advances pursuant to Section 6.01, Default Interest shall
accrue and be payable whether or not previously required by the Agent.
Interest Rate Determination. (a) The Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurodollar 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. (New York 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 Eurodollar 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 Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (A) the Borrower will, on the last day of the
then existing Interest Period therefor, either (x) prepay such Advances or (y) Convert such
19
Advances into Base Rate Advances and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the
Lenders and such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise,
to less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Advances and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
(f) If the rates calculated by the Intercontinental Exchange Benchmark
Administration Ltd (ICE) (or the successor thereto if the ICE Benchmark Administration is no
longer making such a rate available) appearing on the Reuters LIBOR page of the
Intercontinental Exchange Benchmark Administration Ltd (ICE) (or on any successor or
substitute page of such service) are unavailable:
(i) the Agent shall forthwith notify the Borrower and the Lenders that the
interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) with respect to each Eurodollar Rate Advance, each such Advance will
automatically, on the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances or to
Convert Advances into Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
Optional Conversion of Advances. The Borrower 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
Section 2.07 and 2.11, Convert all Advances of one Type comprising the same Borrowing made
to the Borrower into Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, and no Conversion of any Advances shall result in
more than six separate Borrowings. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be
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Converted and (iii) if such Conversion is into Eurodollar 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.
Prepayments of Advances. The Borrower may, upon notice at least two
Business Days’ prior to the date of such prepayment, in the case of Eurodollar 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 the Borrower shall, prepay the outstanding principal
amount of the Advances comprising part of the same Borrowing made to the Borrower 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 of Advances shall be in an
aggregate principal amount of not less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(d). Voluntary prepayments shall be applied to scheduled repayments of the Advances as
directed by the Borrower. Amounts repaid or prepaid pursuant to this Section 2.09 may not be
reborrowed.
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, continuing, converting to or maintaining Eurodollar Rate Advances
(excluding for purposes of this this Section 2.10 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.13 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 Borrower 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. A certificate as to the amount of such increased cost, submitted to the Borrower
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 or liquidity 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 and other commitments of such type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower 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. A certificate as to such amounts submitted to the Borrower
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and the Agent by such Lender shall be conclusive and binding for all purposes, absent manifest
error.
(c) For the avoidance of doubt, for the purposes of this Section 2.10, (x) the Dodd-
Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations,
guidelines, interpretations or directives thereunder or issued in connection therewith (whether or
not having the force of law) and (y) all requests, rules, regulations, guidelines, interpretations or
directives promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities (whether or not having the force of law), in each case pursuant to Basel III,
shall in each case be deemed to be a change in law regardless of the date enacted, adopted,
issued, promulgated or implemented.
Illegality. Notwithstanding any other provision of this Term Loan
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 Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand be Converted into a Base Rate Advance and (b) the obligation
of the Lenders to make Eurodollar Rate Advances or to Convert Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 1:00 P.M.
(New York City time) on the day when due in Dollars to the Agent at the Agent’s Account in
same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest, fees or commissions ratably (other than amounts payable
pursuant to Sections 2.03(b), 2.10, 2.13 or 8.04) 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 Term Loan Agreement. Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18,
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, 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 Assumption and recording of the information contained therein in the Register
pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and
Assumption, 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 Assumption shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate (other than as calculated by
reference to clauses (b) or (c) of the definition of Base Rate) shall be made by the Agent on the
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basis of a year of 365 or 366 days, as the case may be and all other computations of interest and
of fees shall be made by the Agent on the basis of a year of 360 days, 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 is payable. Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) 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, fee or commission, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to the date
on which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Agent may assume that the 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 to such Lender. If and
to the extent the 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 the Federal Funds Rate.
Taxes. (a) Any and all payments by the Borrower hereunder or under the
Notes shall be made, in accordance with this Section 2.12, 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 (i) 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 and (ii) any United States withholding tax imposed under FATCA (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 the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note 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 2.13) 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) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower 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 or from the execution, delivery or registration of, performing
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under, or otherwise with respect to, this Term Loan Agreement or the Notes (hereinafter referred
to as “Other Taxes”).
(c) The 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 by any jurisdiction on amounts payable under this Section 2.13) 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, the Borrower shall furnish
to the Agent, at its address referred to in Section 8.02, 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 by or on behalf of the Borrower through an account or branch
outside the United States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof, the 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) (i) 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 Term Loan Agreement in the
case of each Initial Lender and on the date of the Assignment and Assumption pursuant to which
it becomes a Lender in the case of each other Lender, and from time to time thereafter as
requested in writing by the Borrower (but only so long as such Lender remains lawfully able to
do so), shall provide each of the Agent and the Borrower with two original Internal Revenue
Service forms W-8BEN, W-8BEN-E, W-8ECI or W-8IMY, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service (and such additional documentation
required thereby), certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Term Loan Agreement or the Notes.
If the form provided by a Lender at the time such Lender first becomes a party to this Term Loan
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 Assumption pursuant to which a
Lender assignee becomes a party to this Term Loan 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
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Lender reasonably considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such confidential
information.
(ii) If a payment made to a Lender under this Term Loan Agreement would be
subject to United States federal withholding tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable),
such Lender shall deliver to the Borrower, at the time or times prescribed by law and at
such time or times reasonably requested in writing by the Borrower, such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Internal Revenue Code) and such additional documentation reasonably requested in
writing by the Borrower as may be necessary for the Borrower to comply with their
obligations under FATCA, to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount to deduct and withhold
from such payment.
Solely for purposes of this Section 2.13(e)(ii)Section 2.13(e)(ii), “FATCA” shall include
any amendments made to FATCA after the date of this Term Loan Agreement.
(f) For any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form described in Section 2.13(e) (other than if such failure is due to a
change in law occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.13(a) or 2.13(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 required hereunder, the Borrower
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 Section 2.13
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Eurodollar Lending Office if the making of such a
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.
Sharing of Payments, Etc. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Advances or other obligations hereunder resulting in such Lender receiving payment of
a proportion of the aggregate amount of its Advances and accrued interest thereon or other such
obligations greater than its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the Agent of such fact, and (b) purchase (for cash at face
value) participations in the Advances and such other obligations of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Advances and other amounts owing them; provided that:
25
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this paragraph shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Term Loan Agreement, or (y) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Advances to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim, subject to Section 8.05,
with respect to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
Evidence of Debt. (a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each 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. The Borrower agrees that upon notice by any Lender to the 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, the 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
Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(c) 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 Assignment and Assumption delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) the amount of any sum received by the Agent from
the 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 the Borrower to, in the case of the Register, each Lender and, in the case of
such account or accounts, such Lender, under this Term Loan 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 the Borrower under this Term Loan Agreement.
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Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) for general corporate purposes. The
Borrower will not request any Advance, and the Borrower shall not use, and shall procure that its
Subsidiaries and its or their respective directors, officers, employees and agents shall not directly
or indirectly use, the proceeds of any Advance (a) in furtherance of an offer, payment, promise to
pay, or authorization of the payment or giving of money, or anything else of value, to any Person
in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating
any activities, business or transaction of or with any Sanctioned Person with which the Borrower
or any of its Subsidiaries is prohibited from engaging in business, or in any Sanctioned Country
in which the Borrower or any of its Subsidiaries is prohibited from engaging in business or (c) in
any manner that would result in the violation of any Sanctions applicable to any party hereto.
Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.10, or requires the Borrower to pay any Taxes or additional amounts to any
Lender or any governmental authority for the account of any Lender pursuant to Section 2.13,
then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a
different Applicable Lending Office for funding or booking its Advances hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.10 or 2.13, as the case may be, in the future, and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If (i) any Lender requests compensation under Section
2.10 or the Borrower is required to pay additional amounts to any Lender or any governmental
authority for the account of any Lender pursuant to Section 2.13 and, in each case, such Lender
has declined or is unable to designate a different lending office in accordance with Section
2.17(a), (ii) any Lender is a Defaulting Lender or (iii) any Lender does not approve any consent,
waiver or amendment that (x) requires the approval of all affected Lenders in accordance with
the terms of Section 8.01 and (y) has been approved by the Required Lenders (a “Non-
Approving Lender”), then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section
8.07Section 8.07), all of its interests, rights and obligations under this Term Loan Agreement to
an Eligible Assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that:
(A) the Borrower shall have paid to the Agent the assignment fee (if
any) specified in Section 8.07;
(B) such 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 (including any amounts under Section
8.04(d)Section 8.04(d)) from the assignee (to the extent of such outstanding
27
principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);
(C) in the case of any such assignment resulting from a claim for
compensation under Section 2.10 or payments required to be made pursuant to
Section 2.12, such assignment will result in a reduction in such compensation or
payments thereafter;
(D) such assignment does not conflict with applicable law; and
(E) in the case of any assignment resulting from a Lender becoming a
Non-Approving Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
Increase in the Aggregate Commitments.
(a) The Borrower may, at any time but in any event not more than once in any calendar
year prior to the Maturity Date, by notice to the Agent, request that the aggregate amount of the
Advances be increased by an amount of $50,000,000 or an integral multiple of $50,000,000 in
excess thereof (each a “Commitment Increase”) to be effective as of a date that is at least 90
days prior to the Maturity Date (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 Advances at any
time exceed $500,000,000 and (ii) on the date of any request by the Borrower for a Commitment
Increase and on the related Increase Date, the applicable conditions set forth in Article III shall
be satisfied.
(b) The Agent shall promptly notify the Lenders and to Eligible Assignees identified
by the Borrower of a request by the Borrower 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 and such Eligible Assignees 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.
(c) Promptly following each Commitment Date, the Agent shall notify the Borrower
as to the amount, if any, by which the Lenders and applicable Eligible Assignees are willing to
participate in the requested Commitment Increase. If the aggregate amount by which the
Lenders and Eligible Assignees are willing to participate in any requested Commitment Increase
on any such Commitment Date is more than the requested Commitment Increase, the amounts
allocated to such Lenders and Eligible Assignees shall be determined by the Borrower and the
Agent; provided, however, that the proposed Advances of each such Eligible Assignee shall be in
a minimum amount of $10,000,000.
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(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 Advances 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(c)) 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
Borrower 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 Borrower (which may be in-house counsel), in substantially the form of
Exhibit D hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in form and
substance satisfactory to the Borrower and the Agent (each an “Assumption
Agreement”), duly executed by such Eligible Assignee, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of
its Advances in a writing satisfactory to the Borrower 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) and the conditions set forth in Section 3.02, each
Increasing Lender and Assuming Lender shall, in accordance with Section 2.02, fund their
respective Advances in the amounts of their respective allocated shared of the Commitment
Increase and the Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) and the Borrower, 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.
CONDITIONS TO EFFECTIVENESS AND LENDING
Conditions Precedent to Effectiveness. This Term Loan Agreement shall
become effective on and as of the first date (the “Effective Date”) on which the following
conditions precedent have been satisfied:
(a) The Borrower shall have paid all fees required to be paid on or before the
Effective Date, and all reasonable expenses of the Agent to the extent invoiced prior to the
Effective Date.
(b) The Agent shall have received on or before the Effective Date, each dated the
same day, the following, in form and substance reasonably satisfactory to the Agent:
(i) The Notes made by the Borrower to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.15.
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(ii) Certified copies of the resolutions of the Board of Directors (or equivalent
body) of the Borrower approving this Term Loan Agreement and the Notes to be
delivered by it, and of its by-laws and certificate of incorporation, together with all
amendments thereto, and all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Term Loan Agreement and such
Notes.
(iii) A copy of a good standing certificate issued by the Secretary of State of
the jurisdiction of the Borrower’s jurisdiction of incorporation.
(iv) A certificate of the Secretary or an Assistant Secretary (or equivalent
officer) of the Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Term Loan Agreement and the Notes and the other
documents to be delivered by it hereunder.
(v) A favorable opinion of David A. Woodmansee, Assistant General Counsel
for the Borrower, substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Agent may reasonably request.
(c) A Notice of Borrowing shall have been submitted in accordance with the terms
hereof.
(d) The Agent shall have received on or before the Effective Date from each party
thereto a counterpart of this Term Loan Agreement signed on behalf of such party.
(e) The Lenders shall have received all documentation and other information required
by regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including the PATRIOT Act, requested at least three Business Days prior
to the Effective Date.
Conditions Precedent to Commitment Increase. The obligation of each
Increasing Lender and each Assuming Lender to make an Advance on an Increase Date shall be
subject to the condition precedent that the Effective Date shall have occurred and that the
following additional conditions precedent shall have been satisfied:
(a) The Borrower shall have paid all fees and expenses of the Agent, the Increasing
Lenders and the Assuming Lenders required to be paid on or before the Increase Date and, with
regard to expenses, for which reasonably detailed invoices have been presented to the Borrower
not less than one Business Day prior to the Increase Date.
(b) A Notice of Borrowing shall have been submitted in accordance with the terms
hereof.
(c) The following statements shall be true (and each of the giving of the Notice of
Borrowing and the acceptance by the Borrower of the proceeds of the Advances comprising such
Borrowing shall constitute a representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
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(i) the representations and warranties contained in Section 4.01 are correct on
and as of such date, before and after giving effect to the application of the proceeds of the
Advances of the applicable Increasing Lenders and Assuming Lenders on such Increase
Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from the
application of the proceeds the Advances of the applicable Increasing Lenders and
Assuming Lenders on such Increase Date, that constitutes a Default.
Determinations Under Section 3.01 and 3.02 . For purposes of
determining compliance with the conditions specified in Section 3.01 and Section 3.02, 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 Term Loan Agreement shall have received notice from such Lender prior to
the date that the Borrower, by notice to the Agent, designates as the proposed Effective Date
specifying its objection thereto. The Agent shall promptly notify the Lenders of the occurrence
of the Effective Date.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Corporate Status. The Borrower and each Domestic Subsidiary (i) is a duly
organized and validly existing corporation in good standing under the laws of the jurisdiction of
its incorporation, (ii) has the corporate power and authority to own its property and assets and to
transact the business in which it is engaged or presently proposes to engage and (iii) has duly
qualified and is authorized to do business and is in good standing as a foreign corporation in
every jurisdiction (other than the jurisdiction of its incorporation) in which it owns or leases real
property or in which the nature of its business requires it to be so qualified, except where the
failure to so qualify, individually or in the aggregate, may not reasonably be expected to have a
Material Adverse Effect.
(b) Corporate Power and Authority. The Borrower has the corporate power and
authority to execute, deliver and carry out the terms and provisions of this Term Loan Agreement
and the Notes to be delivered by it and has taken all necessary corporate action to authorize the
execution, delivery and performance by the Borrower of this Term Loan Agreement and such
Notes. The Borrower has duly executed and delivered this Term Loan Agreement, and this Term
Loan Agreement and each Note to be delivered by it constitutes, its legal, valid and binding
obligation, enforceable in accordance with its terms, except as enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law).
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(c) No Violation. Neither the execution, delivery or performance by the Borrower of
this Term Loan Agreement and the Notes to be delivered by it, nor compliance by it with the
terms and provisions thereof nor the consummation of the financing transactions contemplated
thereby, (i) will contravene any applicable provision of any material law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict or
be inconsistent with or result in any material breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of the Borrower or
any of its Subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust,
agreement or other instrument to which the Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be subject or (iii) will violate
any provision of the certificate of incorporation or by-laws of the Borrower.
(d) Litigation. Except as set forth in Schedule 4.01(d), there are no actions, suits or
proceedings, or any governmental investigation or any arbitration, in each case pending or, to the
knowledge of the Borrower, threatened which, individually or in the aggregate, may reasonably
be expected to result in a Material Adverse Effect and no material adverse change has occurred
with respect to any of the matters set forth in Schedule 4.01(d).
(e) Financial Statements; Financial Condition; etc. The financial statements of the
Borrower and its Consolidated Subsidiaries as at September 30, 2016 and December 31, 2015,
heretofore delivered to the Lenders were prepared in accordance with generally accepted
accounting principles consistently applied and fairly present the consolidated financial condition
and the results of operations of the entities covered thereby on the date and for the period
covered thereby, except as disclosed in the notes thereto.
(f) Material Adverse Change. Since December 31, 2015, there has not occurred and
there does not exist any event, act, condition or liability which has had, or may reasonably be
expected to have, a Material Adverse Effect.
(g) Use of Proceeds; Margin Regulations. All proceeds of each Advance will be used
by the Borrower only in accordance with the provisions of Section 2.16. Neither the making of
any Advance nor the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations U or X. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(h) Governmental Approvals. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required for the due execution, delivery
and performance of this Term Loan Agreement or the Notes or the consummation of any of the
transactions contemplated thereby.
(i) Tax Returns and Payments. The Borrower and each of its Subsidiaries has filed
all material tax returns required to be filed by it and has paid all taxes shown on such returns and
assessments payable by it which have become due, other than those not yet delinquent or those
that are in the aggregate adequately reserved against in accordance with generally accepted
accounting principles which are being diligently contested in good faith by appropriate
32
proceedings. Except as set forth in Schedule 4.01(i), there are and will be no tax-sharing or
similar arrangements with any Person (other than the Borrower and its Subsidiaries).
(j) ERISA. The Borrower and each member of its ERISA Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to each Plan. No such Person has (A) sought a
waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan,
(B) failed to make any contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code that is (1) in excess of $5,000,000
and (2) not discharged within 30 days of such failure to pay, or (C) incurred any liability, where
the liability would result in a Material Adverse Effect, under Title IV of ERISA (other than a
liability to the PBGC for premiums under Section 4007 of ERISA).
(k) Investment Company Act. Neither the Borrower nor any of its Subsidiaries is (i)
an “investment company” or a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended, (ii) a “holding company” or a
“subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or
(iii) subject to any other federal or state law or regulation which purports to restrict or regulate its
ability to borrow money.
(l) True and Complete Disclosure. All factual information (taken as a whole)
furnished by or on behalf of the Borrower by a Responsible Officer in writing to the Agent or
any Lender on or prior to the Effective Date, for purposes of or in connection with this Term
Loan Agreement or any of the transactions contemplated hereby is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the Borrower by a
Responsible Officer in writing to the Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or furnished and not
incomplete by knowingly omitting to state any material fact necessary to make such information
(taken as a whole) not misleading at such time. As of the Effective Date, there are no facts,
events, conditions or liabilities known to the Borrower which, individually or in the aggregate,
have or may reasonably be expected to have a Material Adverse Effect.
(m) Environmental Matters. (i) Except as set forth in Schedule 4.01(m), (A) the
Borrower, each of its Affiliates and, to the best of the Borrower’s actual knowledge, each of its
other Environmental Affiliates are in compliance with all applicable Environmental Laws except
where noncompliance, individually or in the aggregate, may not reasonably be expected to have
a Material Adverse Effect, (B) the Borrower, each of its Affiliates, and, to the best of the
Borrower’s actual knowledge, each of its other Environmental Affiliates has all Environmental
Approvals required to operate its business as presently conducted or as reasonably anticipated to
be conducted except where the failure to obtain any such Environmental Approval, individually
or in the aggregate, may not reasonably be expected to have a Material Adverse Effect, (C)
neither the Borrower, any of its Affiliates, nor, to the best of the Borrower’s actual knowledge,
any of its other Environmental Affiliates has received any written communication, whether from
a governmental authority, citizens group, employee or otherwise, that alleges that the Borrower,
such Affiliate or such Environmental Affiliate is not in full compliance with all Environmental
33
Laws and where such noncompliance, individually or in the aggregate, may reasonably be
expected to have a Material Adverse Effect, and (D) to the best of the Borrower’s actual
knowledge, there are no circumstances that may prevent or interfere with such full compliance in
the future except where such noncompliance, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
(i) Except as set forth in Schedule 4.01(d), there is no Environmental Claim
pending or threatened against the Borrower, any of its Affiliates or, to the best of the
Borrower’s actual knowledge, its other Environmental Affiliates, which, individually or
in the aggregate, may reasonably be expected to have a Material Adverse Effect.
(ii) Except as set forth in Schedule 4.01(m), there are no past or present
actions, activities, circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge or disposal of any Material of Environmental
Concern, that could form the basis of any Environmental Claims against the Borrower,
any of its Affiliates or, to the best of the Borrower’s actual knowledge, any of its other
Environmental Affiliates, which Environmental Claims, individually or in the aggregate,
may reasonably be expected to have a Material Adverse Effect.
(iii) Without in any way limiting the generality of the foregoing, except as
disclosed in Schedule 4.01(m), (A) there are no on-site or off-site locations in which the
Borrower, any of its Affiliates or, to the best of the Borrower’s actual knowledge, any of
its other Environmental Affiliates has stored, disposed or arranged for the disposal of
Materials of Environmental Concern, (B) there are no underground storage tanks located
on property owned or leased by the Borrower, any of its Affiliates or, to the best of the
Borrower’s actual knowledge, any of its other Environmental Affiliates, (C) there is no
asbestos contained in or forming part of any building, building component, structure or
office space owned or leased by the Borrower, any of its Affiliates or, to the best of the
Borrower’s actual knowledge, any of its other Environmental Affiliates, and (D) no
polychlorinated biphenyls (PCBs) are used or stored at any property owned or leased by
the Borrower, any of its Affiliates or, to the best of the Borrower’s actual knowledge, any
of its other Environmental Affiliates, in each case the consequences of which may
reasonably be expected to have a Material Adverse Effect.
(iv) For purposes of this Section 4.01(m)Section 4.01(m), “actual” knowledge
means knowledge of a Responsible Officer.
(n) Ownership of Property. The Borrower and each of its Subsidiaries has good and
marketable fee simple title to or valid leasehold interests in all of the real property owned or
leased by the Borrower or such Subsidiary and good title to all of their personal property, except
where the failure to hold such title or leasehold interests, individually or in the aggregate, may
not reasonably be expected to have a Material Adverse Effect. The personal and real property
owned by the Borrower and its Subsidiaries is not subject to any Lien of any kind except Liens
permitted hereby. The Borrower and its Subsidiaries enjoy peaceful and undisturbed possession
under all of their respective leases except where the failure to enjoy such peaceful and
undisturbed possession, individually or in the aggregate, may not reasonably be expected to have
a Material Adverse Effect.
34
(o) No Default. The Borrower is not in default under or with respect to any
agreement, instrument or undertaking to which it is a party or by which it or any of its property is
bound in any respect which may reasonably be expected to result in a Material Adverse Effect.
No Default exists.
(p) Licenses, etc. The Borrower and each of its Subsidiaries have obtained and hold
in full force and effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights, consents and approvals
which are necessary for the operation of their respective businesses as presently conducted,
except where the failure to obtain and hold the same, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
(q) Compliance With Law. The Borrower and each of its Subsidiaries is in
compliance with all laws, rules, regulations, orders, judgments, writs and decrees (including,
without limitation, compliance with the PATRIOT Act) except where such non-compliance,
individually or in the aggregate, may not reasonably be expected to have a Material Adverse
Effect.
(r) Anti-Corruption Laws and Sanctions. The Borrower has implemented and
maintains in effect policies and procedures designed to ensure compliance by the Borrower, its
Subsidiaries and their respective directors, officers, employees and agents in all material respects
with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their
respective officers and employees and to the knowledge of the Borrower its directors and agents,
are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such
Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the
Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No
Advance, use of proceeds thereof or other transaction contemplated by this Term Loan
Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(s) EEA Financial Institution. The Borrower is not an EEA Financial Institution.
COVENANTS OF THE BORROWER
Affirmative Covenants. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder:
(a) Information Covenants. The Borrower shall furnish to each Lender:
(i) Quarterly Financial Statements. Within 60 days after the close of each
quarterly accounting period in each fiscal year of the Borrower (other than the final
quarter), the consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such quarterly period and the related consolidated statements of income, cash flow and
retained earnings for such quarterly period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and in each case setting forth
comparative figures for the related periods in the prior fiscal year.
35
(ii) Annual Financial Statements. Within 90 days after the close of each fiscal
year of the Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such fiscal year and the related consolidated statements of income, cash
flow and retained earnings for such fiscal year, setting forth comparative figures for the
preceding fiscal year and, with respect to such consolidated financial statements, certified
with an unqualified opinion by independent certified public accountants of recognized
national standing selected by the Borrower.
(iii) Officer’s Certificate. At the time of the delivery of the financial
statements under clauses (i) and (ii) above, a certificate of the chief financial officer or
treasurer of the Borrower which certifies (A) that such financial statements fairly present
the financial condition and the results of operations of the Borrower and its Subsidiaries
on the dates and for the periods indicated in accordance with generally accepted
accounting principles, subject, in the case of interim financial statements, to normally
recurring year-end adjustments, (B) that such officer has reviewed the terms of this Term
Loan Agreement and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the business and condition of the Borrower and its
Subsidiaries during the accounting period covered by such financial statements, and that
as a result of such review such officer has concluded that no Default has occurred during
the period commencing at the beginning of the accounting period covered by the
financial statements accompanied by such certificate and ending on the date of such
certificate or, if any Default has occurred, specifying the nature and extent thereof and, if
continuing, the action the Borrower proposes to take in respect thereof and (C) 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 Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP. Such certificate shall be
substantially in the form of Exhibit E.
(iv) Notice of Default. Promptly after the Borrower obtains knowledge of the
occurrence of any Default, a certificate of the chief financial officer or treasurer of the
Borrower specifying the nature thereof and the Borrower’s proposed response thereto.
(v) Litigation. Promptly after (i) the occurrence thereof, notice to the
institution of or any development in any action, suit or proceeding or any governmental
investigation or any arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against the Borrower, any of its Subsidiaries or
any material property of any thereof which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, or (ii) actual knowledge
thereof, notice of the threat of any such action, suit, proceeding, investigation or
arbitration.
(vi) ERISA. (A) As soon as possible and in any event within 10 days after the
Borrower or any member of its ERISA Controlled Group knows, or has reason to know,
that: (1) any Termination Event with respect to a Plan has occurred or will occur, or (2)
any condition exists with respect to a Plan which presents a material risk of termination
36
of the Plan or imposition of an excise tax or other liability on the Borrower or any
member of its ERISA Controlled Group which might have a Material Adverse Effect on
the Borrower, or (3) the Borrower or any member of its ERISA Controlled Group has
applied for a waiver of the minimum funding standard under Section 412 of the Code or
Section 302 of ERISA, or (4) the Borrower or any member of its ERISA Controlled
Group has engaged in a “prohibited transaction”, as defined in Section 4975 of the
Code or as described in Section 406 of ERISA, that is not exempt under Section 4975 of
the Code and Section 408 of ERISA, or (5) any condition exists with respect to a
Multiemployer Plan which presents a material risk of a complete or partial withdrawal (as
described in Section 4203 or 4205 of ERISA) by the Borrower or any member of its
ERISA Controlled Group from a Multiemployer Plan whereupon potential liability
exceeds $50,000,000, or (6) the Borrower or any member of its ERISA Controlled Group
is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (7) a Multiemployer Plan is in “reorganization” (as defined in
Section 418 of the Code or Section 4241 of ERISA) or is “insolvent” (as defined in
Section 4245 of ERISA), or (8) the potential withdrawal liability (as determined in
accordance with Title IV of ERISA) of the Borrower and the members of its ERISA
Controlled Group with respect to all Multiemployer Plans with respect to which any
condition exists which presents a material risk of a complete or partial withdrawal (as
described in Section 4203 or 4205 of ERISA) from such Multiemployer Plans has
increased to an amount in excess of $75,000,000 or (9) there is an action brought against
the Borrower or any member of its ERISA Controlled Group under Section 502 of
ERISA with respect to its failure to comply with Section 515 of ERISA, a certificate of
the chief financial officer or treasurer of the Borrower setting forth the details of each of
the events described in clauses (1) through (9) above as applicable and the action which
the Borrower or the applicable member of its ERISA Controlled Group proposes to take
with respect thereto, together with a copy of any notice or filing from the PBGC or which
may be required by the PBGC or other agency of the United States government with
respect to each of the events described in clauses (1) through (9) above, as applicable.
(B) As soon as possible and in any event within five Business Days
after the receipt by the Borrower or any member of its ERISA Controlled Group
of a demand letter from the PBGC notifying the Borrower or such member of its
ERISA Controlled Group of its final decision finding liability and the date by
which such liability must be paid, a copy of such letter, together with a certificate
of the chief financial officer or treasurer of the Borrower setting forth the action
which the Borrower or such member of its ERISA Controlled Group proposes to
take with respect thereto.
(vii) SEC Filings. Promptly upon the filing thereof, copies of all regular and
periodic financial information, proxy materials and other information and reports, if any,
which the Borrower shall file with the Securities and Exchange Commission (or any
successor thereto) or any governmental agencies substituted therefore or promptly upon
the mailing thereof, copies of such documents, material, information and reports which
the Borrower shall send to or generally make available to its stockholders.
37
(viii) Environmental. Unless prohibited by any applicable law, rule, regulation,
order, writ, injunction or decree of, or agreement with, any court or governmental
instrumentality, or in the case of an Environmental Affiliate which is not otherwise an
Affiliate of the Borrower, any contractual undertaking the primary purpose of which was
other than to prohibit the disclosure of such information, promptly and in any event
within ten Business Days after the existence of any of the following conditions, a
certificate of an Authorized Officer of the Borrower specifying in detail the nature of
such condition and the Borrower’s, Affiliate’s or Environmental Affiliate’s proposed
response thereto: (A) the receipt by the Borrower, any of its Affiliates, or, to the best of
its actual knowledge, any of its other Environmental Affiliates of any written
communication, whether from a governmental authority, citizens group, employee or
otherwise, that alleges that such Person is not in compliance with applicable
Environmental Laws and such noncompliance, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, (B) the Borrower, any of its
Affiliates, or to the best of its actual knowledge, any of its other Environmental Affiliates
shall obtain knowledge that there exists any Environmental Claim pending or threatened
against such Person, which, individually or in the aggregate, may reasonably be expected
to have a Material Adverse Effect, or (C) any release, emission, discharge or disposal of
any Material of Environmental Concern that could form the basis of any Environmental
Claim against the Borrower, any of its Affiliates or any of its other Environmental
Affiliates, which Environmental Claim, individually or in the aggregate, may reasonably
be expected to have a Material Adverse Effect. For purposes of this clause (viii),
“actual” knowledge shall have the meaning provided by Section 4.01(m)Section
4.01(m).
(ix) Other Information. From time to time with reasonable promptness, such
other information or documents (financial or otherwise) as the Agent or any Lender
through the Agent may reasonably request.
In lieu of furnishing to the Agent paper copies of the documents required to be delivered
pursuant to Sections 5.01(a)(i), (ii), (v) and (vii), to the extent such documents are filed with the
Securities Exchange Commission or, in the case of clause (vii), posted on the Borrower’s
Internet website, the documents shall be deemed to have been delivered on the date on which the
Borrower posts such documents on its Internet website or on the Securities Exchange
Commission’s EDGAR system. Notwithstanding the foregoing, the Borrower shall deliver paper
copies of such documents to any Lender that requests the Borrower to deliver such paper copies.
(b) Books, Records and Inspections. The Borrower shall, and shall cause each of its
Domestic Subsidiaries to, keep proper books of record and account in which full, true and correct
entries in conformity with generally accepted accounting principles and all requirements of law
shall be made of all dealings and transactions in relation to its business and activities. The
Borrower shall, and shall cause each of its Subsidiaries to, permit officers and designated
representatives of the Agent or any Lender to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, and to examine the books of record and account of the
Borrower or any of its Subsidiaries, and discuss the affairs, finances and accounts of the
Borrower or any of its Subsidiaries with, and be advised as to the same by, its and their officers
and independent accountants, all upon reasonable notice, at such reasonable times and to such
38
reasonable extent as such Lender may desire, provided any information obtained as the result of
such inspection, examination or discussion shall be deemed to constitute Confidential
Information.
(c) Maintenance of Insurance. On and after the Effective Date and until the Maturity
Date, the Borrower shall, and shall cause each of its Subsidiaries to, maintain with financially
sound and reputable insurance companies or through self-insurance programs consistent with
past practices, insurance on itself and its properties in at least such amounts (in such types and
with such deductibles) and against at least such risks as are customarily insured against in the
same general area by companies engaged in the same or a similar business similarly situated.
(d) Taxes. (i) The Borrower shall pay or cause to be paid or discharged, and shall
cause each of its Subsidiaries to pay or cause to be paid or discharged, when due, all taxes,
charges and assessments and all other lawful claims required to be paid by the Borrower or such
Subsidiaries, except as contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves have been established with respect thereto in accordance with
generally accepted accounting principles.
(ii) Except as set forth in Schedule 5.01(d), the Borrower shall not, and shall
not permit any of its Subsidiaries to, file or consent to the filing of any consolidated tax
return with any Person (other than the Borrower and its Subsidiaries).
(e) Corporate Franchises. The Borrower shall, and shall cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its patents, trademarks, servicemarks, tradenames, copyrights, franchises,
licenses, permits, certificates, authorizations, qualifications, accreditations, easements, rights of
way and other rights, consents and approvals, except where the failure to so preserve any of the
foregoing (other than existence) may not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(f) Compliance with Law. The Borrower shall, and shall cause each of its
Subsidiaries to, comply with all applicable laws, rules, statutes, regulations, decrees and orders
of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of their business and the ownership of their property, including, without
limitation, ERISA and all Environmental Laws, other than those the non-compliance with which,
individually or in the aggregate, may not reasonably be expected to have a Material Adverse
Effect. The Borrower shall maintain in effect and enforce policies and procedures designed to
ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws and applicable Sanctions in all material
respects.
(g) Maintenance of Properties. The Borrower shall, and shall cause each of its
Subsidiaries to, ensure that its material properties used or useful in its business are kept in good
repair, working order and condition, normal wear and tear excepted.
Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder:
39
(a) Liens. The Borrower shall not, and shall not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist, directly or indirectly, any Lien on any of its or their
property (whether real or personal, including, without limitation, accounts receivable and
inventory) or any interest it or they may have therein, whether owned at the date hereof or
hereafter acquired (unless, in the case of any Lien of or upon the property of any of its
Subsidiaries, all obligations and indebtedness thereby secured are held by the Borrower or any of
its Subsidiaries); provided that the provisions of this Section 5.02(a) shall not prevent or restrict
the existence or creation of:
(i) liens for taxes or assessments or governmental charges or levies not then
due and delinquent or the validity of which is being contested in good faith; and
materialmen’s, mechanic’s, carrier’s, workmen’s, repairmen’s, landlord’s or other like
liens, or deposits to obtain the release of such liens;
(ii) pledges or deposits to secure public or statutory obligations or to secure
payment of workmen’s compensation or to secure performance in connection with
tenders, leases of real property, or bids of contracts and pledges or deposits made in the
ordinary course of business for similar purposes;
(iii) licenses, easements, rights of way and other similar encumbrances, or
zoning or other restrictions as to the use of real properties, the existence of which does
not in the aggregate interfere with the operation of the business of the Borrower or any
Subsidiary thereof;
(iv) Liens of or upon any property or assets owned by any Subsidiary of the
Borrower existing on the date on which such Subsidiary first became a Subsidiary, if
such date is subsequent to the date hereof;
(v) Liens of or upon (A) any property or assets acquired by the Borrower or
any of its Subsidiaries (whether by purchase, merger or otherwise) after the date hereof
and not theretofore owned by the Borrower or any of its Subsidiaries), or (B)
improvements made on any property or assets now owned or hereafter acquired, securing
the purchase price thereof or created or incurred simultaneously with, or within 180 days
after, such acquisition or the making of such improvements or existing at the time of such
acquisition (whether or not assumed) or the making of such improvements, if (x) such
Lien shall be limited to the property or assets so acquired or the improvements so made,
(y) the amount of the obligations or indebtedness secured by such Liens shall not be
increased after the date of the acquisition of such property or assets or the making of such
improvements, except to the extent improvements are made to such property or assets
after the date of the acquisition or the making of the initial improvements, and (z) in each
instance where the obligation or indebtedness secured by such Lien constitutes an
obligation or indebtedness of, or is assumed by, the Borrower or any of its Subsidiaries,
the principal amount of the obligation or indebtedness secured by such Lien shall not
exceed 100% of the cost or fair value (which may be determined in good faith by the
Board of Directors of the Borrower), whichever is lower, of the property or assets or
improvements at the time of the acquisition or making thereof;
40
(vi) Liens arising under leases described on Schedule 5.02(a) hereof and
Capitalized Leases;
(vii) mortgages securing indebtedness of a Subsidiary of the Borrower owing to
the Borrower or to another Subsidiary of the Borrower;
(viii) Liens on property of a corporation existing at the time such corporation is
merged into or consolidated with the Borrower or any of its Subsidiaries or at the time of
a sale, lease or other disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Borrower or any of its Subsidiaries;
(ix) Liens on or other conveyances of property owned by the Borrower or any
of its Subsidiaries in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of construction of the property subject to
such mortgages;
(x) Liens on accounts receivable sold to Eastman Chemical Financial
Corporation, a Delaware corporation and a wholly owned (directly or indirectly) special
purpose entity of the Borrower, arising under the Borrower’s securitization program
existing on the date hereof;
(xi) renewals, extensions or replacements of the Liens referred to in clauses
(iv) through (x) for amounts which shall not exceed the principal amount of the
obligations or indebtedness so renewed or replaced at the time of the renewal or
replacement thereof and applying only to the same property or assets theretofore subject
to such Liens;
(xii) Liens on cash collateral provided under the terms of this Term Loan
Agreement; and
(xiii) Liens (including Liens to secure judgments pending appeal) not otherwise
permitted by this Section 5.02(a) securing obligations of the Borrower or any Subsidiary
thereof in an aggregate principal amount outstanding at any one time not to exceed an
amount equal to 15% of Consolidated Net Tangible Assets at such time.
(b) Restriction on Fundamental Changes. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any merger or consolidation, or liquidate, wind-up or
dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially
all of the property of the Borrower, or, in the case of a Subsidiary of the Borrower, the business
or property of the Borrower and its Subsidiaries taken as a whole, whether now or hereafter
acquired; provided that any such merger or consolidation shall be permitted if (i) the Borrower
shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if
other than the Borrower, shall be a corporation organized and existing under the laws of the
41
United States of America, any State thereof or the District of Columbia and such corporation
shall expressly assume to the satisfaction of the Agent the due and punctual performance and
observance of all of the covenants and obligations contained in this Term Loan Agreement and
the Notes to be performed by the Borrower, (ii) immediately after giving effect to such merger or
consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of
any such merger or consolidation occurring on or after the Effective Date, the covenant
contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month
period ending on such date, after giving effect to such merger or consolidation with respect to the
Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied;
and provided, further that any majority-owned Subsidiary of the Borrower may merge into or
convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other
majority-owned Subsidiary of the Borrower. Pro forma compliance with Section 5.03 shall be
determined in a manner which includes appropriate adjustments to Consolidated Interest
Expense and Consolidated EBT, including, without limitation, adjustments designed to reflect
indebtedness incurred in connection with or in contemplation of such merger or consolidation
and interest expense for the twelve month period ending on the date of such determination in
respect thereof, and shall be demonstrated to the reasonable satisfaction of the Agent.
(c) Sales and Leasebacks. The Borrower shall not, nor shall it permit any Principal
Subsidiary to, enter into any arrangement with any Person that provides for the leasing to the
Borrower or any Principal Subsidiary of any Principal Property, which Principal Property has
been or is to be sold or transferred by the Borrower or such Principal Subsidiary to such Person,
unless the Borrower or such Principal Subsidiary would be entitled, pursuant to Section
5.02(a)Section 5.02(a), to create, incur, assume or suffer to exist any Lien upon such property
securing Indebtedness; provided that the aggregate fair market value of all properties subject to
such arrangements shall not exceed at any time 10% of the Consolidated Net Tangible Assets
and provided further that from and after the date on which such arrangement becomes effective
the same shall be deemed for all purposes under Section 5.02(a)Section 5.02(a) to be
Indebtedness secured by a Lien.
(d) Limitations on Restricted Subsidiary Debt. The Borrower shall not permit any
Restricted Subsidiary to incur or assume any Debt except:
(i) Debt that is or could be secured by a Lien permitted pursuant to Section
5.02(a)Section 5.02(a)Section 5.02(a);
(ii) Debt outstanding on the Effective Date;
(iii) Debt issued to and held by the Borrower or another Subsidiary;
(iv) Debt incurred by a Person prior to the time (A) such Person became a
Restricted Subsidiary, (B) such Person merges into or consolidates with a Restricted
Subsidiary or (C) another Restricted Subsidiary merges into or consolidates with such
Person (in a transaction in which such Person becomes a Restricted Subsidiary), which
Debt was not incurred in anticipation of such transaction and was outstanding prior to
such transaction;
42
(v) Debt incurred in the ordinary course of business and maturing within one
year; and
(vi) extensions, renewals or replacements of any of the foregoing;
provided, however, that the Borrower may permit a Restricted Subsidiary to incur Debt
as permitted by clauses (ii), (iv), (v) and (vi) of this Section 5.02(d)Section 5.02(a) only to the
extent that the aggregate amount of such Debt of all Restricted Subsidiaries does not exceed 15%
of Consolidated Net Tangible Assets.
Financial Covenant. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of Debt of the
Borrower and its Subsidiaries on a Consolidated basis to Consolidated EBITDA of the Borrower
and its Subsidiaries for any four consecutive fiscal quarters of the Borrower (taken as one
accounting period), of not greater than 3.50 to 1.00.
EVENTS OF DEFAULT
Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:
(a) Failure to Make Payments. The Borrower shall (i) default in the payment when
due of any principal of the Advances, and such default shall continue unremedied for one or
more Business Days or (ii) default, and such default shall continue unremedied for ten or more
days, in the payment when due of any interest on the Advances or (iii) default, and such default
shall continue unremedied for 30 or more days from the date of notice of such default, in the
payment when due of any fees or any other amounts owing hereunder; or
(b) Breach of Representation or Warranty. Any representation or warranty made by
the Borrower in any certificate or statement delivered pursuant hereto or thereto shall prove to be
false or misleading in any material respect on the date as of which made or deemed made; or
(c) Breach of Covenants. The Borrower shall fail to perform or observe any
agreement, covenant or obligation arising under this Term Loan Agreement (except those
described in subsections (a) or (b) above), and, if capable of being remedied, such failure shall
remain unremedied for 30 days after written notice thereof shall have been given to the Borrower
by the Agent; provided that there shall be deducted from such number of days any grace period
utilized by the Borrower in notifying the Agent of such Default pursuant to Section
5.01(a)(iv)Section 5.02(a); or
(d) Default Under Other Agreements. The Borrower or any of its Subsidiaries shall
default in the payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any Indebtedness in the
principal amount of $100,000,000 or more and such default shall continue beyond any applicable
grace period; or the Borrower or any of its Subsidiaries shall default in the performance or
observance of any obligation or condition with respect to any Indebtedness or any other event
shall occur or condition exist, if the effect of such default, event or condition is to accelerate the
43
maturity of any such Indebtedness or to permit the holder or holders thereof, or any trustee or
agent for such holders, to accelerate the maturity of any such Indebtedness, unless, in each case,
waived by such holder or holders, or any such Indebtedness shall become or be declared to be
due and payable prior to its stated maturity other than as a result of a regularly scheduled
payment, and the principal amount of such Indebtedness exceeds $100,000,000; or
(e) Bankruptcy, etc. (i) The Borrower or any Material Subsidiary shall commence a
voluntary case concerning itself under the Bankruptcy Code; or (ii) an involuntary case is
commenced against the Borrower or any Material Subsidiary and the petition is not controverted
within 30 days, or is not dismissed within 60 days, after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any Material Subsidiary or the Borrower or
any Material Subsidiary commences any other proceedings under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to the Borrower or any
Material Subsidiary or there is commenced against the Borrower or any Material Subsidiary any
such proceeding which remains undismissed for a period of 60 days; or (iv) any order of relief or
other order approving any such case or proceeding is entered; or (v) the Borrower or any
Material Subsidiary is adjudicated insolvent or bankrupt; or (vi) the Borrower or any Material
Subsidiary suffers any appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or (vii) the Borrower or
any Material Subsidiary makes a general assignment for the benefit of creditors; or (viii) the
Borrower or any Material Subsidiary shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; or (ix) the Borrower or any
Material Subsidiary shall by any act or failure to act consent to, approve of or acquiesce in any of
the foregoing; or (x) any corporate action is taken by the Borrower or any Material Subsidiary
for the purpose of effecting any of the foregoing; or
(f) ERISA. The Borrower or any member of its ERISA Controlled Group shall fail
to pay when due an amount or amounts aggregating in excess of $100,000,000 for which it shall
have become liable under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Benefit Liabilities in excess of $100,000,000 shall be filed under
Title IV of ERISA by the Borrower or any member of its ERISA Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Plan or Plans
having aggregate Unfunded Benefit Liabilities in excess of $100,000,000 or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any
Plan or Plans having aggregate Unfunded Benefit Liabilities in excess of $100,000,000 must be
terminated; or there shall occur a complete or partial withdrawal from, or a default within the
meaning of Section 4219(c)(5) of ERISA with respect to, one or more Multiemployer Plans
which could cause the Borrower or one or more members of the ERISA Controlled Group to
incur a current payment obligation in excess of $100,000,000 if not paid when due; or
(g) Judgments. One or more judgments or decrees in an aggregate amount of
$100,000,000 or more shall be entered by a court against the Borrower or any of its Subsidiaries
and (i) any such judgments or decrees shall not be stayed, discharged, paid, bonded or vacated
44
within 30 days or (ii) enforcement proceedings shall be commenced by any creditor on any such
judgments or decrees; provided, however, that any such judgment or order shall not be an Event
of Default under this Section 6.01(g)Section 5.02(a) if and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance, with deductible or self-
insured retention consistent with industry practices, 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
(h) Change in Control. At any time on or after the Effective Date a Change in
Control shall have occurred; then, and in any such event, the Agent shall at the request, or may
with the consent, of the Required Lenders, by written notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this Term Loan 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 the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code, (A) the obligation of each Lender to make Advances 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 the Borrower.
THE AGENT
Appointment and Authority. Each of the Lenders hereby irrevocably
appoints Wells Fargo to act on its behalf as the Agent hereunder and authorizes the Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms
hereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Agent and the Lenders, and the
Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is
understood and agreed that the use of the term “agent” herein (or any other similar term) with
reference to the Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead such term is used as a
matter of market custom, and is intended to create or reflect only an administrative relationship
between contracting parties.
Rights as a Lender. The Person serving as the Agent hereunder shall have
the same rights and powers in its capacity as a Lender 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 or unless the context otherwise requires, include the Person
serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, own securities of, act as the financial advisor or in any
other advisory capacity for, and generally engage in any kind of business with, the Borrower or
any Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and
without any duty to account therefor to the Lenders.
45
Exculpatory Provisions. (a) The Agent shall not have any duties or
obligations except those expressly set forth herein, and its duties hereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby that the Agent is required to exercise as directed in writing by the Required
Lenders; provided that the Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary
to this Term Loan Agreement or applicable law, including, for the avoidance of doubt,
any action that may be in violation of the automatic stay under any debtor relief law; and
(iii) shall not, except as expressly set forth herein, have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to the Borrower
or any of its Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
(b) The Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Section 8.01 and Article VI), or (ii) in the absence of its
own gross negligence or willful misconduct as determined by a court of competent jurisdiction
by final and nonappealable judgment. The Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent in writing by a
Borrower or a Lender.
(c) The Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Term Loan
Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Term Loan Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Agent.
Reliance by Agent. The Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of an Advance, that by its terms must be fulfilled to the satisfaction of a
46
Lender, the Agent may presume that such condition is satisfactory to such Lender unless the
Agent shall have received notice to the contrary from such Lender prior to the making of such
Advance. The Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
Indemnification. (a) Each Lender severally agrees to indemnify the Agent
(to the extent not promptly reimbursed by the Borrower), 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 Term Loan Agreement or any action taken or omitted by the Agent under this Term Loan
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 reasonable
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
Term Loan Agreement, to the extent that the Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) The failure of any Lender to reimburse the Agent 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 for its
Ratable Share of such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse the Agent 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 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes. The Agent
agrees to return to the Lenders their respective Ratable Shares of any amounts paid under this
Section 7.05 that are subsequently reimbursed by the Borrower.
Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder by or through any one or more sub-agents appointed
by the Agent. The Agent and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related Parties of the
Agent and any such sub-agent, and shall apply to their respective activities in connection with
the syndication of the Commitments as well as activities as Agent. The Agent shall not be
responsible for the negligence or misconduct of any sub-agents except to the extent that a court
of competent jurisdiction determines in a final and nonappealable judgment that the Agent acted
with gross negligence or willful misconduct in the selection of such sub-agents.
47
Resignation of Agent. (a) The Agent may at any time give notice of its
resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the
“Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on
behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above.
Whether or not a successor has been appointed, such resignation shall become effective in
accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Agent is a Defaulting Lender pursuant to clause (v) of the
definition thereof, the Required Lenders may, to the extent permitted by applicable law, by
notice in writing to the Borrower and such Person remove such Person as Agent and, in
consultation with the Borrower, appoint a successor. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days (or
such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”),
then such removal shall nonetheless become effective in accordance with such notice on the
Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date
(as applicable) (1) the retiring or removed Agent shall be discharged from its duties and
obligations hereunder (except that in the case of any collateral security held by the Agent on
behalf of the Lenders, the retiring or removed Agent shall continue to hold such collateral
security until such time as a successor Agent is appointed) and (2) all payments, communications
and determinations provided to be made by, to or through the Agent shall instead be made by or
to each Lender directly, until such time, if any, as the Required Lenders appoint a successor
Agent as provided for above. Upon the acceptance of a successor’s appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall
be discharged from all of its duties and obligations hereunder. The fees payable by the Borrower
to a successor Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring or removed Agent’s
resignation or removal hereunder, the provisions of this Article VIII and Section 8.04 shall
continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring or removed Agent was acting as Agent.
Non-Reliance on Agent and Other Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Term Loan Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent or any other
Lender or any of their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
48
action under or based upon this Term Loan Agreement or any related agreement or any
document furnished hereunder.
Other Agents. Each Lender hereby acknowledges that no Arranger, no
syndication agent and no documentation agent nor any other Lender designated as any “Agent”
(other than the Agent) on the signature pages or the cover hereof has any obligation,
responsibility or liability hereunder other than in its capacity as a Lender.
MISCELLANEOUS
Amendments, Etc. No amendment or waiver of any provision of this Term
Loan Agreement or the Notes, nor consent to any departure by the 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 affected thereby, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or 3.02, (b) increase or extend the
Commitments of the Lenders (other than in accordance with Section 2.18) or subject the Lenders
to any additional obligations, (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, or (f) amend this Section 8.01; 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 Term Loan
Agreement or any Note and (y) no amendment or waiver of, or consent with respect to, Section
8.07(g) shall, unless in writing and signed by each Lender that has granted a funding option to an
SPC in addition to the Lenders required above to take such action, affect the rights or duties of
such Lender or SPC under this Term Loan Agreement or any Note.
Notices, Etc. (a) Notices Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and except as provided in
paragraph (b) below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by facsimile as follows:
(i) if to the Borrower, to it at 200 South Wilcox Drive, Kingsport, Tennessee
37662, Attention of Treasurer (Facsimile No. 423-224-0165; Telephone No. 423-229-
2000);
(ii) if to the Agent, to Wells Fargo at 1525 W. WT Harris Blvd, Building 1B1,
Charlotte, NC 28262, Attention of Agency Services; Email:
[email protected]); and
49
(iii) if to a Lender, to it at its address (or facsimile number) set forth in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by facsimile shall be
deemed to have been given when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of business on the next business
day for the recipient). Notices delivered through electronic communications, to the extent
provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has
notified the Agent that it is incapable of receiving notices under such Article by electronic
communication. The Agent or the Borrower may, in its discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to procedures
approved by it; provided that approval of such procedures may be limited to particular notices or
communications.
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-
mail address shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as available, return e-
mail or other written acknowledgement), and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient,
at its e-mail address as described in the foregoing clause (i), of notification that such notice or
communication is available and identifying the website address therefor; provided that, for both
clauses (i) and (ii) above, if such notice, email or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next business day for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platform.
(i) The Borrower agrees that the Agent may, but shall not be obligated to,
make the Communications (as defined below) available to the Lenders by posting the
Communications on DebtDomain, Intralinks, Syndtrak or a substantially similar
electronic transmission system (the “Platform”).
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim
liability for errors or omissions in the Communications. 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 any Agent Party in connection
50
with the Communications or the Platform. In no event shall the Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Agent’s transmission of communications through the Platform. “Communications”
means, collectively, any notice, demand, communication, information, document or other
material that the Borrower provides to the Agent pursuant to this Term Loan Agreement
or the transactions contemplated therein which is distributed by the Agent to any Lender
by means of electronic communications pursuant to this Section, including through the
Platform.
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.
Costs and Expenses. (a) The Borrower agrees to pay promptly following
demand all reasonable out-of-pocket costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of this Term Loan
Agreement, the Notes and the other documents to be delivered hereunder, including, without
limitation, (A) all reasonable 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 Term Loan
Agreement. The Borrower further agrees to pay on demand all 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 Term Loan 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 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender
and each of their Affiliates and their officers, directors, employees, agents, partners 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 Term Loan Agreement and 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 any
Material of Environmental Concern on any property of the Borrower or any of its Subsidiaries or
any Environmental Claim or other liability relating to any Environmental Law relating in any
way to the Borrower or any of its Subsidiaries, except in each case to the extent such claim,
damage, loss, liability or expense is found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful
51
misconduct. In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are consummated. The
Borrower 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 Term Loan Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is
made by the Borrower to or for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.07(d) or
(e), 2.09 or 2.11, 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 Term Loan
Agreement pursuant to Section 8.07 as a result of a demand by the Borrower pursuant to Section
2.17(b)Section 2.17(b), the 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 (including 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. A certificate
as to the amount of such compensation, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in Sections 2.10, 2.13 and
8.04 shall survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.
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 Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Term Loan Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Term Loan Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to notify the
applicable 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.
52
Binding Effect. Subject to Section 3.01, this Term Loan Agreement shall
become effective when it shall have been executed by the Borrower, the Agent and the Initial
Lenders and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent
and each Lender and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the prior written
consent of all of the Lenders (and any other attempted assignment or transfer by any party hereto
shall be null and void).
Assignments and Participations. (a) Successors and Assigns Generally.
No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i)
to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Term Loan Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Term Loan Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Term Loan Agreement
(including all or a portion of its Commitment or the Advances at the time owing to it); provided
that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment or the Advances at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment or the principal outstanding balance of the
Advances of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $10,000,000 unless each
of the Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Term Loan Agreement with respect to the Advance or the Commitment
assigned.
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(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
(A) prior to the Effective Date, the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless (x)
an Event of Default has occurred and is continuing at the time of such assignment,
or (y) such assignment is to an Approved Lender, a Lender, an Affiliate of a
Lender, or an Approved Fund; provided that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Agent within five Business Days after having received notice
thereof;
(B) on or after the Effective Date, the consent of the Borrower shall
not be required, provided that any assigning Lender shall consult the Borrower
prior to any assignment; and
(C) the consent of the Agent (such consent not to be unreasonably
withheld or delayed) shall be required for all assignments if such assignment is to
a Person that is not an Approved Lender, a Lender, an Affiliate of such Lender or
an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; provided that the Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Agent an
Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to
a natural Person or a holding company, investment vehicle or trust for or owned by and
operated for the primary benefit of a natural Person.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Term Loan Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Term Loan Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Term Loan Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Term Loan Agreement,
such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.11 and 8.04 with respect to facts and circumstances occurring prior to the effective
date of such assignment. Any assignment or transfer by a Lender of rights or obligations under
this Term Loan Agreement that does not comply with this paragraph shall be treated for purposes
54
of this Term Loan Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) Register. The Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in the United States a copy of each Assignment and
Assumption delivered to it and a register for the recordation of (and shall record in such register)
the names and addresses of the Lenders, and the Commitments of, and principal amounts (and
stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and
the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Term Loan
Agreement. The Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Agent, sell participations to any Person (other than a natural Person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Term Loan Agreement (including
all or a portion of its Commitment and/or the Advances owing to it); provided that (i) such
Lender’s obligations under this Term Loan Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such
obligations, and (iii) the Borrower, the Agent and Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Term Loan Agreement. For the avoidance of doubt, each Lender shall be responsible for the
indemnity under Section 7.05 with respect to any payments made by such Lender to its
Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Term Loan Agreement and to
approve any amendment, modification or waiver of any provision of this Term Loan Agreement;
provided that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver described in the
proviso to Section 8.01 that affects such Participant. The Borrower agrees that each Participant
shall be entitled to the benefits of Section 2.10 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b)2.07(b) of this Section; provided that
such Participant agrees to be subject to the provisions of Section 2.17 as if it were an assignee
under paragraph (b)2.07(b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 7.05 as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells a participation agrees, at the Borrower’s request and expense, to
use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.17
with respect to any Participant. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 8.05 as though it were a Lender; provided that such Participant
agrees to be subject to Section 2.14 as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name and address of each Participant and the principal
55
amounts (and stated interest) of each Participant’s interest in the Advances or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of any
Participant or any information relating to a Participant’s interest in any commitments, loans or its
other obligations under this Term Loan Agreement) to any Person except to the extent that such
disclosure is necessary to establish that such commitment, loan or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Term Loan Agreement notwithstanding any notice to the
contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no
responsibility for maintaining a Participant Register
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive
any greater payment under Sections 2.10 or 2.13 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent. A
Participant that is organized under the laws of a jurisdiction outside of the United States shall not
be entitled to the benefits of Section 2.13 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.13(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Term Loan Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or
other central banking authority having jurisdiction over such lender; provided that no such
pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Each Lender may grant to a special purpose funding vehicle (an “SPC”) the
option to fund all or any part of any Advance that such Lender is obligated to fund under this
Term Loan Agreement (and upon the exercise by such SPC of such option to fund, such
Lender’s obligations with respect to such Advance shall be deemed satisfied to the extent of any
amounts funded by such SPC); provided, however, that (i) such Lender’s obligations under this
Term Loan Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Borrower, 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 Term Loan Agreement, (iv) any such option granted to
an SPC shall not constitute a commitment by such SPC to fund any Advance, (v) neither the
grant nor the exercise of such option to an SPC shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this Term Loan Agreement (including,
without limitation, its obligations under Section 2.13) and (vi) no SPC shall have any right to
approve any amendment or waiver of any provision of this Term Loan Agreement or any Note,
or any consent to any departure by the 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 grant of
56
funding option, 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
grant of funding option. Each party to this Term Loan Agreement hereby agrees that no SPC
shall be liable for any indemnity or payment under this Term Loan Agreement for which a
Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby
agrees (which agreements shall survive the termination of this Term Loan Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or join any other
Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any State thereof.
Confidentiality. Each of the Agent and the Lenders agree to maintain the
confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed on a confidential basis (a) to its Affiliates and to its Related
Parties (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Confidential Information and instructed to keep such
information confidential); (b) to the extent required or requested by any regulatory authority
purporting to have jurisdiction over such Person or its Related Parties (including any self-
regulatory authority, such as the National Association of Insurance Commissioners); (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party hereto; (e) in connection with the exercise of any remedies hereunder or any
action or proceeding relating to this Term Loan Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights and obligations under this Term Loan Agreement, or (ii) any actual or
prospective party (or its Related Parties) to any swap, derivative or other transaction under which
payments are to be made by reference to the Borrower and its obligations, this Term Loan
Agreement or payments hereunder and credit insurers; (g) on a confidential basis to (i) any rating
agency in connection with rating the Borrower or its Subsidiaries or this Term Loan Agreement
or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and
monitoring of CUSIP numbers with respect to this Term Loan Agreement; (h) with the consent
of the Borrower; or (i) to the extent such Confidential Information (x) becomes available to the
Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower or (y) becomes publicly available other than as a result of a breach of
confidentiality obligations known to the Agent, such Lender.
For purposes of this Section, “Confidential Information” means all information
received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Agent, any Lender on a nonconfidential basis prior to disclosure by the Borrower
or any of its Subsidiaries; provided that, in the case of information received from the Borrower
or any of its Subsidiaries after the date hereof, such information is clearly identified at the time
of delivery as confidential. Any Person required to maintain the confidentiality of Confidential
Information as provided in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of
such Confidential Information as such Person would accord to its own confidential information.
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Governing Law. This Term Loan Agreement and the Notes and any
claim, controversy and dispute arising hereunder or thereunder, or with respect hereto or thereto,
shall be governed by, and construed in accordance with, the laws of the State of New York.
Execution in Counterparts. This Term Loan 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 Term Loan Agreement by telecopier or by e-mail transmission of an electronic file in
Adobe Corporation’s Portable Document Format or PDF file shall be effective as delivery of a
manually executed counterpart of this Term Loan Agreement.
Jurisdiction, Etc. (a) Each of the parties hereto irrevocably and
unconditionally agrees that it will not commence any action, litigation or proceeding of any kind
or description, whether in law or equity, whether in contract or in tort or otherwise, against the
Agent, any Lender or any Related Party of the foregoing in any way relating to this Term Loan
Agreement or any Note or the transactions relating hereto, in any forum other than the courts of
the State of New York sitting in New York County, and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, and each of the parties
hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that
all claims in respect of any such action, litigation or proceeding may be heard and determined in
such New York State court or, to the fullest extent permitted by applicable law, in such federal
court. Each of the parties hereto agrees that a final judgment in any such action, litigation 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 Term Loan Agreement or in
any Note shall affect any right that the Agent or any Lender or may otherwise have to bring any
action or proceeding relating to this Term Loan Agreement or any Note against the Borrower or
its properties in the courts of any jurisdiction. The Borrower hereby further irrevocably consents
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 Borrower at its address
specified pursuant to Section 8.02. 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 Term Loan Agreement
shall affect any right that any party may otherwise have to bring any action or proceeding
relating to this Term Loan Agreement or the Notes in the courts of any jurisdiction.
(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 Term Loan
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.
Power of Attorney. Each Subsidiary of the Borrower may from time to
time authorize and appoint the Borrower as its attorney-in-fact to execute and deliver (a) any
amendment, waiver or consent in accordance with Section 8.01 on behalf of and in the name of
such Subsidiary and (b) any notice or other communication hereunder, on behalf of and in the
58
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.
Patriot Act. Each Lender hereby notifies the Borrower, each Subsidiary of
the Borrower and each other obligor or grantor (each a “Loan Party”) that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001) (the “PATRIOT Act”)), that it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender to identify each Loan Party in accordance with
the PATRIOT Act.
No Fiduciary Duties. The Agent, the Lenders and their respective
Affiliates may be involved in a broad range of transactions that involve interests that differ from
those of the Borrower and its Affiliates, and the Agent and the Lenders have no obligation to
disclose any of such interests to the Borrower and its Affiliates. The Borrower agrees that in
connection with all aspects of the transactions contemplated hereby and any communications in
connection therewith, the Borrower and its Affiliates, on the one hand, and the Agent, the
Arrangers, the syndication agent, the documentation agent, the Lenders and their respective
Affiliates, on the other hand, will have a business relationship that does not create, by
implication or otherwise, any fiduciary duty on the part of the Agent, the Lenders and or
respective Affiliates and no such duty will be deemed to have arisen in connection with any such
transactions or communications.
Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in this Agreement or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under this Agreement, to the extent such
liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any party hereto
that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent undertaking, or a
bridge institution that may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement; or
(iii) the variation of the terms of such liability in connection with the exercise
of the Write-Down and Conversion Powers of any EEA Resolution Authority.
59
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):
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law for such EEA Member Country from time to time which
is described in the EU Bail-In Legislation Schedule.
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor Person), as in effect from time to
time.
“Loan Market Association” means the London trade association, which is the self-
described authoritative voice of the syndicated loan markets in Europe, the Middle East and
Africa.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time
to time under the Bail-In Legislation for the applicable EEA Member Country, which write-
down and conversion powers are described in the EU Bail-In Legislation Schedule.
Entire Agreement. The Loan Documents contain the entire agreement
between the parties relating to the subject matter hereof and supersede all oral statements and
prior writings with respect thereto other than the Fee Letter and the Commitment Letter referred
to therein.
Waiver of Jury Trial. The 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 Term Loan Agreement or
the Notes or the actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
60
IN WITNESS WHEREOF, the parties hereto have caused this Term Loan Agreement to
be executed by their respective officers thereunto duly authorized, as of the date first above
written.
EASTMAN CHEMICAL COMPANY
By:
Name: Curtis E. Espeland
Title: Executive Vice President and
Chief Financial Officer
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Agent
By:
Title:
Initial Lenders
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
MORGAN STANLEY BANK, N.A.
By:
Name:
Title:
SUNTRUST BANK
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
BARCLAYS BANK PLC
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By:
Name:
Title:
MIZUHO BANK, LTDA.
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION
By:
Name:
Title:
CITY NATIONAL BANK
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
REGIONS BANK
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI
UFJ, LTD.
By:
Name:
Title
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