================================================================================
US$2,250,000,000
FIVE-YEAR CREDIT AGREEMENT
dated as of
June 30, 2004
among
AUTOMATIC DATA PROCESSING, INC.
The Borrowing Subsidiaries
referred to herein
The LENDERS Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED,
as London Agent
JPMORGAN CHASE BANK, TORONTO BRANCH,
as Canadian Agent
The SWINGLINE LENDERS
BANK OF AMERICA, N.A.
Barclays Bank PLC
BNP Paribas
CITIBANK, N.A.
DEUTSCHE BANK SECURITIES INC. and
WACHOVIA NATIONAL ASSOCIATION,
as Co-Syndication Agents
_________________________
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Bookrunners
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[CS&M 6701-136]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................2
SECTION 1.02. Classification of Loans and Borrowings........................24
SECTION 1.03. Terms Generally...............................................24
SECTION 1.04. Accounting Terms; GAAP........................................24
SECTION 1.05. Exchange Rates................................................25
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments...................................................25
SECTION 2.02. Loans and Borrowings..........................................26
SECTION 2.03. Requests for Borrowings.......................................27
SECTION 2.04. Bankers' Acceptances..........................................28
SECTION 2.05. Competitive Bid Procedure.....................................31
SECTION 2.06. Swingline Loans...............................................33
SECTION 2.07. Funding of Borrowings and B/A Drawings........................35
SECTION 2.08. Repayment of Borrowings and B/A Drawings;
Evidence of Debt............................................36
SECTION 2.09. Interest Elections............................................37
SECTION 2.10. Termination and Reduction of Commitments......................40
SECTION 2.11. Prepayment of Loans...........................................40
SECTION 2.12. Fees..........................................................42
SECTION 2.13. Interest......................................................44
SECTION 2.14. Alternate Rate of Interest....................................45
SECTION 2.15. Increased Costs...............................................45
SECTION 2.16. Break Funding Payments........................................47
SECTION 2.17. Taxes.........................................................47
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs..........................................48
SECTION 2.19. Mitigation Obligations; Replacement of Lenders................50
SECTION 2.20. Designation of Borrowing Subsidiaries.........................51
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..........................................52
SECTION 3.02. Authorization; Enforceability.................................52
SECTION 3.03. Governmental Approvals; No Conflicts..........................52
Contents, p.2
SECTION 3.04. Financial Condition; No Material Adverse Change...............52
SECTION 3.05. Properties....................................................53
SECTION 3.06. Litigation and Environmental Matters..........................53
SECTION 3.07. Compliance with Laws and Agreements...........................53
SECTION 3.08. Federal Reserve Regulations...................................54
SECTION 3.09. Investment and Holding Company Status.........................54
SECTION 3.10. Taxes.........................................................54
SECTION 3.11. ERISA.........................................................54
SECTION 3.12. Disclosure....................................................54
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date................................................55
SECTION 4.02. Each Credit Event.............................................56
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary............56
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information....................57
SECTION 5.02. Notices of Material Events....................................58
SECTION 5.03. Existence; Conduct of Business................................59
SECTION 5.04. Payment of Taxes..............................................59
SECTION 5.05. Maintenance of Properties.....................................59
SECTION 5.06. Books and Records; Inspection Rights..........................59
SECTION 5.07. Compliance with Laws..........................................59
SECTION 5.08. Use of Proceeds...............................................59
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens.........................................................60
SECTION 6.02. Sale and Leaseback Transactions...............................61
SECTION 6.03. Fundamental Changes...........................................61
ARTICLE VII
EVENTS OF DEFAULT
Contents, p.3
ARTICLE VIII
THE AGENTS
ARTICLE IX
GUARANTEE
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices......................................................68
SECTION 10.02. Waivers; Amendments..........................................69
SECTION 10.03. Expenses; Indemnity; Damage Waiver...........................71
SECTION 10.04. Successors and Assigns.......................................72
SECTION 10.05. Survival.....................................................74
SECTION 10.06. Counterparts; Integration; Effectiveness.....................75
SECTION 10.07. Severability.................................................75
SECTION 10.08. Right of Setoff..............................................75
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process...75
SECTION 10.10. WAIVER OF JURY TRIAL.........................................76
SECTION 10.11. Headings.....................................................76
SECTION 10.12. Confidentiality..............................................77
SECTION 10.13. Conversion of Currencies.....................................77
SECTION 10.14. Interest Rate Limitation.....................................78
SCHEDULES:
Schedule 2.01 -- Lenders and Commitments
Schedule 2.18 -- Payment Instructions
Schedule 6.01 -- Liens
EXHIBITS:
Exhibit A-1 -- Form of Borrowing Subsidiary Agreement
Exhibit A-2 -- Form of Borrowing Subsidiary Termination
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Opinion of General Counsel of the Company
Exhibit D -- Form of Promissory Note
FIVE-YEAR CREDIT AGREEMENT dated as of June
30, 2004 (this "Agreement"), among AUTOMATIC DATA
PROCESSING, INC., a Delaware corporation (the
"Company"); the BORROWING SUBSIDIARIES from time to
time party hereto (the Company and the Borrowing
Subsidiaries being collectively called the
"Borrowers"); the LENDERS from time to time party
hereto; JPMORGAN CHASE BANK, as Administrative Agent;
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as London Agent; JPMORGAN
CHASE BANK, TORONTO BRANCH, as Canadian Agent; and
the SWINGLINE LENDERS.
The Company has requested the Lenders (such term and each
other capitalized term used and not otherwise defined herein having the meaning
assigned to it in Article I) to extend credit in the form of (a) US Tranche
Commitments under which the Company and the US Borrowing Subsidiaries may obtain
US Tranche Loans in US Dollars in an aggregate principal amount at any time
outstanding that will not result in the US Tranche Exposure exceeding
US$1,572,985,687, (b) Canadian Tranche Commitments under which the Canadian
Borrowing Subsidiaries may obtain Canadian Tranche Loans in Canadian Dollars,
and the Company and the US Borrowing Subsidiaries may obtain Canadian Tranche
Loans in US Dollars, in an aggregate principal amount at any time outstanding
that will not result in the Canadian Tranche Exposure exceeding US$371,664,313,
(c) Euro Tranche Commitments under which the Company, the US Borrowing
Subsidiaries and the Euro Borrowing Subsidiaries may obtain Euro Tranche Loans
in Euros and US Dollars in an aggregate principal amount at any time outstanding
that will not result in the Euro Tranche Exposure exceeding US$305,350,000 and
(d) Swingline Loans to the Company and the US Borrowing Subsidiaries in US
Dollars, and to the Canadian Borrowing Subsidiaries in Canadian Dollars, in an
aggregate amount at any time outstanding that will not result in the aggregate
US Dollar Equivalent of the Swingline Exposures exceeding US$1,000,000,000 or
the Canadian Swingline Exposures exceeding US$148,665,726. The Company has also
requested the Lenders to provide (a) a procedure pursuant to which the Borrowers
may invite the Lenders to bid on an uncommitted basis on short-term Loans to the
Borrowers and (b) a procedure under which the Borrowers may obtain Loans on an
uncommitted basis from individual Lenders on terms to be negotiated at the time
such Loans are requested. The proceeds of borrowings hereunder are to be used
for general corporate purposes of the Borrowers and their subsidiaries.
2
The Lenders are willing to establish the credit facilities
referred to in the preceding paragraph upon the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder or any successor in
such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENTS" means, collectively, the Administrative Agent, the
London Agent and the Canadian Agent.
"AGREEMENT CURRENCY" has the meaning assigned to such term in
Section 10.13(b).
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE AGENT" means (a) with respect to a Loan or
Borrowing denominated in US Dollars, and with respect to any payment hereunder
that does not relate to a particular Loan or Borrowing, the Administrative
Agent, (b) with respect to a Borrowing denominated in Euros, the London Agent,
and (c) with respect to a Borrowing denominated in Canadian Dollars or a B/A,
the Canadian Agent.
3
"APPLICABLE RATE" means, for any day, with respect to any
Eurocurrency Loan or B/A Drawing, or with respect to the facility fees payable
hereunder, the applicable rate per annum set forth below under the caption
"Eurocurrency Spread", "B/A Spread" or "Facility Fee Rate", based upon the
Ratings:
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EUROCURRENCY SPREAD, FACILITY FEE
-------------------- ------------
RATINGS: B/A SPREAD RATE
-------- ---------- ----
-------------------------------------------------------------------------------
CATEGORY 1 0.100% 0.050%
Greater than or equal
to Aa3 or AA-
-------------------------------------------------------------------------------
CATEGORY 2
Greater than or equal
to A3 or A- 0.175% 0.075%
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CATEGORY 3
Less than A3 or A- 0.200% 0.100%
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For purposes of the foregoing, (a) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect Ratings (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 3; (b) if the Ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P shall fall
within different Categories, the Applicable Rate shall be based on the higher of
the two ratings unless the ratings differ by two or more Categories, in which
case Eurocurrency, B/A Spread and the Facility Fees shall be based on the
Category one level above that corresponding to the lower rating; and (c) if the
Ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P shall
be changed (other than as a result of a change in the rating system of ▇▇▇▇▇'▇
or S&P), such change shall be effective as of the date on which it is first
publicly announced by ▇▇▇▇▇'▇ or S&P. Each change in the Applicable Rate shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Required Lenders shall negotiate in good faith
to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit B or any other form approved by the Administrative Agent.
4
"ATTRIBUTABLE DEBT" means, with respect to any Sale and
Leaseback Transaction, the present value (discounted at the rate set forth or
implicit in the terms of the lease included in such Sale and Leaseback
Transaction) of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
which do not constitute payments for property rights) during the remaining term
of the lease included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended). In the case of any lease which
is terminable by the lessee upon payment of a penalty, the Attributable Debt
shall be the lesser of the Attributable Debt determined assuming termination
upon the first date such lease may be terminated (in which case the Attributable
Debt shall also include the amount of the penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated) or the Attributable Debt determined assuming
no such termination.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the Maturity Date.
"B/A" means a ▇▇▇▇ of exchange, including a depository ▇▇▇▇
issued in accordance with the Depository Bills and Notes Act (Canada),
denominated in Canadian Dollars, drawn by a Canadian Borrowing Subsidiary and
accepted by a Canadian Tranche Lender in accordance with the terms of this
Agreement.
"B/A DRAWING" means B/As accepted and purchased on the same
date and as to which a single Contract Period is in effect.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means the Company or any Borrowing Subsidiary.
"BORROWING" means Loans (including Competitive Loans or
Contract Loans) of the same Class, Type and currency, made, converted or
continued on the same date and, in the case of Eurocurrency Loans or Fixed Rate
Loans, as to which a single Interest Period is in effect.
"BORROWING MINIMUM" means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000 and (b) in the case of a Borrowing
denominated in any Designated Foreign Currency, 5,000,000 units of the
applicable Designated Foreign Currency.
"BORROWING MULTIPLE" means (a) in the case of a Borrowing
denominated in US Dollars, US$1,000,000 and (b) in the case of a Borrowing
denominated in any Designated Foreign Currency, 1,000,000 units of such
currency.
5
"BORROWING REQUEST" means a request by a Borrower for a
Borrowing in accordance with Section 2.03.
"BORROWING SUBSIDIARY" means a US Borrowing Subsidiary, a
Canadian Borrowing Subsidiary or a Euro Borrowing Subsidiary.
"BORROWING SUBSIDIARY AGREEMENT" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit A-1.
"BORROWING SUBSIDIARY TERMINATION" means a Borrowing
Subsidiary Termination substantially in the form of Exhibit A-2.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED, that (a) when used in connection with a
Eurocurrency Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market, (b) when used in connection with a Loan denominated in
Canadian Dollars or a B/A, the term "BUSINESS DAY" shall also exclude any day on
which banks are not open for dealings in deposits in Toronto, and (c) when used
in connection with a Loan denominated in Euros, the term "BUSINESS DAY" shall
also exclude any days on which the TARGET payment system is not open for the
settlement of payments in Euros.
"CALCULATION DATE" means the last Business Day of each
calendar month.
"CANADIAN AGENT" means JPMorgan Chase Bank, Toronto Branch, or
any successor in such capacity.
"CANADIAN BASE RATE" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the next 1/16 or 1%) equal to the
greater of (a) the interest rate per annum publicly announced from time to time
by JPMorgan Chase Bank, Toronto Branch as its reference rate in effect on such
day at its principal office in Toronto for determining interest rates applicable
to commercial loans denominated in Canadian Dollars in Canada (each change in
such reference rate being effective from and including the date such change in
publicly announced as being effective) and (b) the interest rate per annum equal
to the sum of (i) the CDOR Rate on such day (or, if such rate is not so reported
on the Reuters Screen CDOR Page, the average of the rate quotes for bankers'
acceptances denominated in Canadian Dollars with a term of 30 days received by
the Canadian Agent at approximately 10:00 a.m., Toronto time, on such day (or,
if such day is not a Business Day, on the next preceding Business Day) from one
or more banks of recognized standing selected it) and (ii) 0.50% per annum.
"CANADIAN BORROWING SUBSIDIARY" means any Canadian Subsidiary
that has been designated as such pursuant to Section 2.20 and that has not
ceased to be a Canadian Borrowing Subsidiary as provided in such Section.
6
"CANADIAN DOLLARS" or "C$" means the lawful money of Canada.
"CANADIAN SUBSIDIARY" means any Subsidiary that is
incorporated or otherwise organized under the laws of Canada or any province
thereof.
"CANADIAN SWINGLINE COMMITMENT" means, with respect to each
Canadian Swingline Lender, the commitment of such Canadian Swingline Lender to
make Canadian Swingline Loans pursuant to Section 2.06, expressed as an amount
representing the maximum aggregate amount of such Canadian Swingline Lender's
outstanding Canadian Swingline Loans hereunder, as such commitment may be
reduced from time to time pursuant to Section 2.10. The initial amount of each
Canadian Swingline Lender's Canadian Swingline Commitment is set forth on
Schedule 2.01. The aggregate amount of the Canadian Swingline Commitments on the
date hereof is US$148,665,726.
"CANADIAN SWINGLINE EXPOSURE" means, at any time, the sum of
the Canadian Swingline Loans outstanding at such time. The Canadian Swingline
Exposure of any Lender at any time shall be such Lender's Canadian Swingline
Percentage of the total Canadian Swingline Exposure at such time.
"CANADIAN SWINGLINE LENDERS" means JPMorgan Chase Bank,
Toronto Branch and Royal Bank of Canada.
"CANADIAN SWINGLINE LOAN" means a Loan made by a Canadian
Swingline Lender under its Canadian Swingline Commitment pursuant to Section
2.06.
"CANADIAN SWINGLINE PERCENTAGE" means, with respect to any
Canadian Swingline Lender, the percentage of the total Canadian Swingline
Commitments represented by such Lender's Canadian Swingline Commitment. If the
Canadian Swingline Commitments have terminated or expired, the Canadian
Swingline Percentages shall be determined based upon the Canadian Swingline
Commitments most recently in effect, giving effect to any assignments.
"CANADIAN TRANCHE COMMITMENT" means, with respect to each
Canadian Tranche Lender, the commitment of such Canadian Tranche Lender to make
Canadian Tranche Loans pursuant to Section 2.01(b), to accept and purchase or
arrange for the purchase of B/As pursuant to Section 2.04 and to acquire
participations in Canadian Swingline Loans pursuant to Section 2.06, expressed
as an amount representing the maximum aggregate amount of such Canadian Tranche
Lender's Canadian Tranche Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.10 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Canadian Tranche Lender's Canadian
Tranche Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Canadian Tranche Lender shall have assumed its
Canadian Tranche Commitment, as applicable. The aggregate amount of the Canadian
Tranche Commitments on the date hereof is US$371,664,313.
7
"CANADIAN TRANCHE EXPOSURE" means, at any time, the sum of (a)
the aggregate principal amount of the Canadian Tranche Loans denominated in US
Dollars outstanding at such time, (b) the US Dollar Equivalent of the aggregate
principal amount of the Canadian Tranche Loans denominated in Canadian Dollars
outstanding at such time, (c) the US Dollar Equivalent of the aggregate face
amount of the B/As accepted by the Canadian Lenders and outstanding at such time
and (d) the US Dollar Equivalent of the Canadian Swingline Exposure at such
time. The Canadian Tranche Exposure of any Lender at any time shall be such
Lender's Canadian Tranche Percentage of the total Canadian Tranche Exposure at
such time.
"CANADIAN TRANCHE LENDER" mean a Lender with a Canadian
Tranche Commitment.
"CANADIAN TRANCHE PERCENTAGE" means, with respect to any
Canadian Tranche Lender, the percentage of the total Canadian Tranche
Commitments represented by such Lender's Canadian Tranche Commitment. If the
Canadian Tranche Commitments have terminated or expired, the Canadian Tranche
Percentages shall be determined based upon the Canadian Tranche Commitments most
recently in effect, giving effect to any assignments.
"CANADIAN TRANCHE BORROWING" means a borrowing comprised of
Canadian Tranche Loans.
"CANADIAN TRANCHE LOAN" means a Loan made by a Canadian
Tranche Lender pursuant to Section 2.01(b). Each Canadian Tranche Loan
denominated in US Dollars shall be a Eurocurrency Loan or an ABR Loan, and each
Canadian Tranche Loan denominated in Canadian Dollars shall be a Eurocurrency
Loan or a Canadian Base Rate Loan.
"CDOR RATE" means, on any date, an interest rate per annum
equal to the average discount rate applicable to bankers' acceptances
denominated in Canadian Dollars with a term of 30 days (for purposes of the
definition of "Canadian Base Rate") or with a term equal to the Contract Period
of the relevant B/As (for purposes of the definition of "Discount Rate")
appearing on the Reuters Screen CDOR Page (or on any successor or substitute
page of such Screen, or any successor to or substitute for such Screen,
providing rate quotations comparable to those currently provided on such page of
such Screen, as determined by the Canadian Agent from time to time) at
approximately 10:00 a.m., Toronto time, on such date (or, if such date is not a
Business Day, on the next preceding Business Day).
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
8
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or by
any lending office of such Lender or by such Lender's holding company with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to (a) any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are US
Tranche Loans, Euro Tranche Loans, Canadian Tranche Loans, Competitive Loans,
Contract Loans or Swingline Loans, and (b) any Commitment, refers to whether
such Commitment is a US Tranche Commitment, a Euro Tranche Commitment or a
Canadian Tranche Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" means a US Tranche Commitment, a Euro Tranche
Commitment or a Canadian Tranche Commitment.
"COMPANY" has the meaning assigned to such term in the heading
of this Agreement.
"COMPETITIVE BID" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.05.
"COMPETITIVE BID RATE" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"COMPETITIVE BID REQUEST" means a request for Competitive Bids
in accordance with Section 2.05.
"COMPETITIVE BORROWING" means a Borrowing comprised of
Competitive Loans.
"COMPETITIVE LOAN" means a Loan made pursuant to Section 2.05.
Each Competitive Loan shall be a Eurocurrency Loan or a Fixed Rate Loan.
"COMPETITIVE LOAN EXPOSURE" means, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount of the outstanding
Competitive Loans
9
of such Lender denominated in US Dollars and (b) the aggregate of the US Dollar
Equivalents of the principal amounts of the outstanding Competitive Loans of
such Lender denominated in Designated Foreign Currencies.
"CONSOLIDATED NET WORTH" means the shareholders' equity of the
Company, determined on a consolidated basis in accordance with GAAP.
"CONTRACT LOAN" has the meaning assigned to such term in
Section 2.02(e).
"CONTRACT LOAN EXPOSURE" means, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of the outstanding
Contract Loans of such Lender denominated in US Dollars and (b) the aggregate of
the US Dollar Equivalents of the principal amounts of the outstanding Contract
Loans of such Lender denominated in Designated Foreign Currencies.
"CONTRACT PERIOD" means, with respect to any B/A, the period
commencing on the date such B/A is issued and accepted and ending on the date
30, 60, 90 or 180 days thereafter, as the applicable Canadian Borrowing
Subsidiary may elect (in each case subject to availability); PROVIDED, that if
such Contract Period would end on a day other than a Business Day, such Contract
Period shall be extended to the next succeeding Business Day.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DESIGNATED FOREIGN CURRENCY" means the Canadian Dollar and
the Euro.
"DISCOUNT PROCEEDS" means, with respect to any B/A, an amount
(rounded upward, if necessary, to the nearest C$.01) calculated by multiplying
(a) the face amount of such B/A by (b) the quotient obtained by dividing (i) one
by (ii) the sum of (A) one and (B) the product of (x) the Discount Rate
(expressed as a decimal) applicable to such B/A and (y) a fraction of which the
numerator is the Contract Period applicable to such B/A and the denominator is
365, with such quotient being rounded upward or downward to the fifth decimal
place and .000005 being rounded upward.
"DISCOUNT RATE" means, with respect to a B/A being accepted
and purchased on any day, (a) for a Lender which is a Schedule I Lender, (i) the
CDOR Rate applicable to such B/A or, (ii) if the discount rate for a particular
Contract Period is not quoted on the Reuters Screen CDOR Page, the arithmetic
average (as determined by the
10
Canadian Agent) of the percentage discount rates (expressed as a decimal and
rounded upward, if necessary, to the nearest 1/100 of 1%) quoted to the Canadian
Agent by the Schedule I Reference Lenders as the percentage discount rate at
which each such bank would, in accordance with its normal practices, at
approximately 10:00 a.m., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such bank having a face amount and term
comparable to the face amount and Contract Period of such B/A, and (b) for a
lender which is a Schedule II Lender or a Schedule III Lender, the arithmetic
average (as determined by the Canadian Agent) of the percentage discount rates
(expressed as a decimal and rounded upward, if necessary, to the nearest 1/100
of 1%) quoted to the Canadian Agent by the Schedule II Reference Lenders as the
percentage discount rate at which each such bank would, in accordance with its
normal practices, at approximately 10:00 a.m., Toronto time, on such day, be
prepared to purchase bankers' acceptances accepted by such bank having a face
amount and term comparable to the face amount and Contract Period of such B/A.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
"EMU LEGISLATION" means the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any of the Borrowers or any of
their Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
11
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any ERISA Affiliate of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the Company or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" or "(EURO)" means the single currency of the European
Union as constituted by the Treaty on European Union and as referred to in the
EMU Legislation.
"EURO BORROWING SUBSIDIARY" means any Subsidiary that has been
designated as such pursuant to Section 2.20 and that has not ceased to be a Euro
Borrowing Subsidiary as provided in such Section.
"EUROCURRENCY", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the LIBO Rate.
"EURO TRANCHE COMMITMENT" means, with respect to each Euro
Tranche Lender, the commitment of such Euro Tranche Lender to make Euro Tranche
Loans pursuant to Section 2.01(c), expressed as an amount representing the
maximum aggregate amount of such Euro Tranche Lender's Euro Tranche Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.10 or pursuant to assignments by or to such Lender under Section
10.04. The initial amount of each Euro Tranche Lender's Euro Tranche Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which Euro Tranche Lender shall have assumed its Euro Tranche Commitment, as
applicable. The aggregate amount of the Euro Tranche Commitments on the date
hereof is US$305,350,000.
"EURO TRANCHE EXPOSURE" means, at any time, the sum of (a) the
aggregate principal amount of the Euro Tranche Loans denominated in US Dollars
outstanding at such time and (b) the US Dollar Equivalent of the aggregate
principal amount of the Euro Tranche Loans denominated in Euros outstanding at
such time. The Euro Tranche
12
Exposure of any Lender at any time shall be such Lender's Euro Tranche
Percentage of the total Euro Tranche Exposure at such time.
"EURO TRANCHE LENDER" mean a Lender with a Euro Tranche
Commitment.
"EURO TRANCHE PERCENTAGE" means, with respect to any Euro
Tranche Lender, the percentage of the total Euro Tranche Commitments represented
by such Lender's Euro Tranche Commitment. If the Euro Tranche Commitments have
terminated or expired, the Euro Tranche Percentages shall be determined based
upon the Euro Tranche Commitments most recently in effect, giving effect to any
assignments.
"EURO TRANCHE BORROWING" means a Borrowing comprised of Euro
Tranche Loans.
"EURO TRANCHE LOAN" means a Loan made by a Euro Tranche Lender
pursuant to Section 2.01(c). Each Euro Tranche Loan shall be a Eurocurrency
Loan.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCHANGE RATE" means on any day, for purposes of determining
the US Dollar Equivalent of any other currency, the rate at which such other
currency may be exchanged into US Dollars, as set forth at approximately 11:00
a.m., London time, on such day on the Reuters World Currency Page for the
applicable currency or currencies. In the event that such rate does not appear
on any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Company, or, in the
absence of such agreement, such Exchange Rate shall instead be the arithmetic
average of the spot rates of exchange of the Administrative Agent in the market
where its foreign currency exchange operations in respect of the applicable
currencies are then being conducted, at or about 10:00 a.m., local time, on such
date for the purchase of US Dollars with such other currency for delivery two
Business Days later; PROVIDED that if at the time of any such determination, for
any reason, no such spot rate is being quoted, the Administrative Agent, after
consultation with the Company, may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be presumed
correct absent manifest error.
"EXCLUDED TAXES" means, with respect to any Agent, any Lender
or any other recipient of any payment to be made by or on account of any
Obligation hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America (or any political subdivision
thereof), or by the jurisdiction under which such recipient is organized or in
which its principal office or any lending office from which it makes Loans
hereunder is located, (b) any branch profit taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction described in
clause (a) above, (c) in the case of a US Tranche Lender or Euro Tranche Lender
(other than an assignee pursuant to a request by the Company under Section
13
2.19(b)), any withholding tax that is imposed by the United States of America
(or any political subdivision thereof) on payments by a Borrower from an office
within such jurisdiction to the extent such tax is in effect and would apply as
of the date such US Tranche Lender or Euro Tranche Lender becomes a party to
this Agreement or relates to payments received by a new lending office
designated by such US Tranche Lender or Euro Tranche Lender and is in effect and
would apply at the time such lending office is designated, (d) in the case of a
Canadian Tranche Lender (other than an assignee pursuant to a request by the
Company under Section 2.19(b)), any withholding tax that is imposed (i) by
Canada (or any province or other political subdivision therein) on payments by a
Canadian Borrowing Subsidiary from an office within such jurisdiction or (ii) by
the United States of America (or any political subdivision thereof) on payments
by the Company from an office within such jurisdiction, in either case to the
extent such tax is in effect and would apply as of the date such Canadian
Tranche Lender becomes a party to this Agreement or relates to payments received
by a new lending office designated by such Canadian Tranche Lender and is in
effect and would apply at the time such lending office is designated, and (e)
any withholding tax that is attributable to such Lender's failure to comply with
Section 2.17(e), except, in the case of clause (c) or (d) above, to the extent
that (i) such Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts with respect to such withholding tax pursuant to Section 2.17 or (ii)
such withholding tax shall have resulted from the making of any payment to a
location other than the office designated by the Applicable Agent or such Lender
for the receipt of payments of the applicable type.
"EXPOSURE" means, with respect to any Lender, such Lender's US
Tranche Exposure, Canadian Tranche Exposure, Euro Tranche Exposure, Competitive
Loan Exposure and Contract Loan Exposure.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding 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
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"FIXED RATE" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
14
"FIXED RATE LOAN" means a Competitive Loan bearing interest at
a Fixed Rate.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; PROVIDED, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right,
15
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INTEREST ELECTION REQUEST" means a request by the relevant
Borrower to convert or continue a Borrowing or a B/A Drawing in accordance with
Section 2.09.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
or Canadian Base Rate Loan (other than a Swingline Loan), the last day of each
March, June, September and December, (b) with respect to any Eurocurrency Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest
Period of more than three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period, (c) with respect to any Fixed Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates specified in the applicable
Competitive Bid Request as Interest Payment Dates with respect to such
Borrowing, (d) with respect to any Contract Loan, the date or dates agreed upon
by the relevant Borrower and the applicable Lender or, if no such dates shall
have been agreed upon, the last day of each March, June, September and December
and (e) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, (i) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect, (ii) with respect to
any Fixed Rate Borrowing, the period (which shall not be more than 360 days)
commencing on the date of such Borrowing and ending on the date specified in the
applicable Competitive Bid Request and (iii) with respect to any Contract Loan,
the period commencing on the date of such Borrowing and ending on the date
agreed upon by the relevant Borrower and the applicable Lender; PROVIDED that
(i) if any Interest Period would end on a day other than a
16
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurocurrency Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made, and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"JPMCB" means JPMorgan Chase Bank and its successors.
"JUDGMENT CURRENCY" has the meaning assigned to such term in
Section 10.13(b).
"LENDERS" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that shall have ceased to be a party
hereto pursuant to an Assignment and Acceptance. Unless the context requires
otherwise, the term "Lenders" shall include the Swingline Lenders.
"LIBO RATE" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by the Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
PROVIDED that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, "LIBO Rate" shall mean the
interest rate per annum determined by the Applicable Agent to be the average of
the rates per annum at which deposits in the currency of such Borrowing are
offered for such Interest Period to major banks in the London interbank market
by JPMCB at approximately 11:00 a.m., London time, on the Quotation Day for such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, each Borrowing
Subsidiary Agreement, each Borrowing Subsidiary Termination and each promissory
note delivered pursuant to this Agreement.
17
"LOANS" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"LOCAL TIME" means (a) with respect to a Loan or Borrowing
denominated in US Dollars, New York City time, (b) with respect to a Loan or
Borrowing denominated in Euro, London time and (c) with respect to a Loan or
Borrowing denominated in Canadian Dollars or a B/A, Toronto time.
"LONDON AGENT" means ▇.▇. ▇▇▇▇▇▇ Europe Limited or any
successor in such capacity.
"MARGIN" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole, (b) the ability
of the Company to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of the
Company and its Subsidiaries in an aggregate principal amount exceeding
US$250,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of any Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Borrower or
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"MATERIAL SUBSIDIARY" means (a) any Subsidiary that is a
Borrower, (b) any Subsidiary that directly or indirectly owns or Controls any
Material Subsidiary and (c) any other Subsidiary (i) the revenues of which for
the most recent period of four fiscal quarters of the Company for which audited
financial statements have been delivered pursuant to Section 5.01 were greater
than 10% of the Company's consolidated revenues for such period or (ii) the
assets of which as of the end of such period were greater than 10% of the
Company's consolidated assets as of such date; PROVIDED that if at any time the
aggregate amount of the revenues or assets of all Subsidiaries that are not
Material Subsidiaries for or at the end of any period of four fiscal quarters
exceeds 10% of the Company's consolidated revenues for such period or 10% of the
Company's consolidated assets as of the end of such period, the Company shall
(or, in the event the Company has failed to do so within 10 days, the
Administrative Agent may) designate sufficient Subsidiaries as "Material
Subsidiaries" to eliminate such excess, and such designated Subsidiaries shall
for all purposes of this Agreement constitute Material Subsidiaries.
18
For purposes of making the determinations required by this definition, revenues
and assets of foreign Subsidiaries shall be converted into US Dollars at the
rates used in preparing the consolidated balance sheet of the Company included
in the applicable financial statements.
"MATURITY DATE" means June 30, 2009.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor to the rating agency business thereof.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"OBLIGATIONS" means the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and (ii)
all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrowers under this Agreement and the
other Loan Documents.
"OTHER TAXES" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made hereunder or under any other Loan
Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in good faith;
19
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of any of the Borrowers
or any of their Subsidiaries;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness or any Lien in favor of the PBGC.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any of the
Borrowers or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"PREPAYMENT ACCOUNT" has the meaning specified in Section
2.11(e).
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"QUOTATION DAY" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such Interest
Period. If such quotations would normally be given by prime banks on more than
one day, the Quotation Day will be the last of such days.
"RATINGS" means, at any time, the Company's issuer rating by
▇▇▇▇▇'▇ and the Company's credit rating by S&P at such time.
20
"REGISTER" has the meaning set forth in Section 10.04.
"RELATED FUND" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
trustees, agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having unused
US Tranche Commitments, U.S. Tranche Exposures, unused Canadian Tranche
Commitments, Canadian Tranche Exposures, unused Euro Tranche Commitments and
Euro Tranche Exposures with an aggregate US Dollar Equivalent representing more
than 50% of the aggregate US Dollar Equivalent of the total unused US Tranche
Commitments, U.S. Tranche Exposures, unused Canadian Tranche Commitments,
Canadian Tranche Exposures, unused Euro Tranche Commitments and Euro Tranche
Exposures at such time; PROVIDED that, for purposes of declaring the Loans to be
due and payable pursuant to Article VII, and for all purposes after the Loans
become due and payable pursuant to Article VII or the Commitments expire or
terminate, the outstanding Competitive Loans and Contract Loans of the Lenders
shall be included in their respective US Tranche Exposures in determining the
Required Lenders.
"RESET DATE" has the meaning set forth in Section 1.05(a).
"REUTERS SCREEN CDOR PAGE" means the display designated as
page CDOR on the Reuters Monitor Money Rates Service or other page as may, from
time to time, replace that page on that service for the purpose of displaying
bid quotations for bankers' acceptances accepted by leading Canadian banks.
"REVOLVING BORROWING" means a Borrowing comprised of US
Tranche Loans, Canadian Tranche Loans or Euro Tranche Loans, in each case made
pursuant to Section 2.01.
"REVOLVING LOAN" means any US Tranche Loan, Canadian Tranche
Loan or Euro Tranche Loan.
"S&P" means Standard & Poor's Ratings Group or any successor
to the rating agency business thereof.
"SALE AND LEASEBACK TRANSACTION" means any arrangement whereby
the Company or a Subsidiary, directly or indirectly, shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
21
"SCHEDULE I LENDER" means any Lender named on Schedule I to
the Bank Act (Canada).
"SCHEDULE I REFERENCE LENDERS" means Royal Bank of Canada and
Bank of Montreal.
"SCHEDULE II LENDER" means any Lender named on Schedule II to
the Bank Act (Canada).
"SCHEDULE II REFERENCE LENDER" means JPMorgan Chase Bank,
Toronto Branch.
"SCHEDULE III LENDER" means any Lender named on Schedule III
to the Bank Act (Canada).
"STATUTORY RESERVES" means, with respect to any currency, any
reserve, liquid asset or similar requirements established by any Governmental
Authority of the United States or of the jurisdiction of such currency or any
jurisdiction in which Loans in such currency are made to which banks in such
jurisdiction are subject for any category of deposits or liabilities customarily
used to fund loans in such currency or by reference to which interest rates
applicable to Loans in such currency are determined.
"SUBSIDIARY" means, with respect to any Person, any entity
with respect to which such Person alone owns, such Person or one or more of its
subsidiaries together own, or such Person and any Person Controlling such Person
together own, in each case directly or indirectly, capital stock or other equity
interests having ordinary voting power to elect a majority of the members of the
Board of Directors of such corporation or other entity or having a majority
interest in the capital or profits of such corporation or other entity.
"SUBSIDIARY" means any subsidiary of the Company.
"SWINGLINE LENDERS" means the US Swingline Lenders and the
Canadian Swingline lenders.
"SWINGLINE LOAN" means a US Swingline Loan or a Canadian
Swingline Loan.
"SWINGLINE EXPOSURE" means the US Swingline Exposure and the
Canadian Swingline Exposure.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
22
"TRANCHE" means a category of Commitments and extensions of
credit thereunder. For purposes hereof, each of the following comprise a
separate Tranche: (i) the US Tranche Commitments and the US Tranche Loans, (ii)
the Canadian Tranche Commitments and the Canadian Tranche Loans and B/A Drawings
and (iii) the Euro Tranche Commitments and the Euro Tranche Loans.
"TRANSACTIONS" means the execution, delivery and performance
by the Company and the other Borrowers of the Loan Documents, the borrowing of
Loans and purchases and acceptances of B/As hereunder and the use of the
proceeds thereof.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the LIBO Rate, the Alternate Base
Rate, the Canadian Base Rate or a Fixed Rate.
"US BORROWING SUBSIDIARY" means any Subsidiary that has been
designated as such pursuant to Section 2.20 and that has not ceased to be a US
Borrowing Subsidiary as provided in such Section.
"US DOLLAR EQUIVALENT" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount, and (b) with respect
to any amount in Canadian Dollars or Euros, the equivalent in US Dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05 using
the Exchange Rates at the time in effect under the provisions of such Section.
"US DOLLARS" or "US $" means the lawful money of the United
States of America.
"US SWINGLINE COMMITMENT" means, with respect to each US
Swingline Lender, the commitment of such US Swingline Lender to make US
Swingline Loans pursuant to Section 2.06, expressed as an amount representing
the maximum aggregate amount of such US Swingline Lender's outstanding US
Swingline Loans hereunder, as such commitment may be reduced from time to time
pursuant to Section 2.10. The initial amount of each US Swingline Lender's US
Swingline Commitment is set forth on Schedule 2.01. The aggregate amount of the
US Swingline Commitments on the date hereof is US$1,000,000,000.
"US SWINGLINE EXPOSURE" means, at any time, the sum of the US
Swingline Loans outstanding at such time. The US Swingline Exposure of any
Lender at any time shall be such Lender's US Swingline Percentage of the total
US Swingline Exposure at such time.
"US SWINGLINE LENDERS" means JPMorgan Chase Bank, Bank of
America, N.A., Barclays Bank PLC, BNP Paribas, Citibank N.A., Deutsche Bank AG
New York
23
Branch, Wachovia Bank, National Association and ▇▇▇▇▇ Fargo Bank, National
Association.
"US SWINGLINE LOAN" means a Loan made by a US Swingline Lender
under its US Swingline Commitment pursuant to Section 2.06.
"US SWINGLINE PERCENTAGE" means, with respect to any US
Swingline Lender, the percentage of the total US Swingline Commitments
represented by such Lender's US Swingline Commitment. If the US Swingline
Commitments have terminated or expired, the US Swingline Percentages shall be
determined based upon the US Swingline Commitments most recently in effect,
giving effect to any assignments.
"US TRANCHE COMMITMENT" means, with respect to each US Tranche
Lender, the commitment of such Lender to make US Tranche Loans pursuant to
Section 2.01(a) and to acquire participations in US Swingline Loans pursuant to
Section 2.06, expressed as an amount representing the maximum aggregate amount
of such US Tranche Lender's US Tranche Exposure hereunder, as such commitment
may be reduced from time to time pursuant to Section 2.10 or pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each US Tranche Lender's US Tranche Commitment is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such US Tranche Lender
shall have assumed its US Tranche Commitment, as applicable. The aggregate
amount of the US Tranche Commitments on the date hereof is US$1,572,985,687.
"US TRANCHE EXPOSURE" means, at any time, the sum of (a) the
aggregate principal amount of the US Tranche Loans outstanding at such time plus
(b) the US Swingline Exposure at such time. The US Tranche Exposure of any
Lender at any time shall be such Lender's US Tranche Percentage of the total US
Tranche Exposure at such time.
"US TRANCHE LENDER" mean a Lender with a US Tranche
Commitment.
"US TRANCHE PERCENTAGE" means, with respect to any US Tranche
Lender, the percentage of the total US Tranche Commitments represented by such
Lender's US Tranche Commitment. If the US Tranche Commitments have terminated or
expired, the US Tranche Percentages shall be determined based upon the US
Tranche Commitments most recently in effect, giving effect to any assignments.
"US TRANCHE BORROWING" means a Borrowing comprised of US
Tranche Loans.
"US TRANCHE LOAN" means a Loan made by a US Tranche Lender
pursuant to Section 2.01(a). Each US Tranche Loan shall be a Eurocurrency Loan
or an ABR Loan.
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"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "US Tranche Loan") or by Type (E.G., a "Eurocurrency Loan") or by Class
and Type (E.G., a "Eurocurrency US Tranche Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "US Tranche Borrowing") or by Type
(E.G., a "US Tranche Eurocurrency Borrowing") or by Class and Type (E.G., a
"Eurocurrency US Tranche Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time; PROVIDED
that if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
25
SECTION 1.05. EXCHANGE RATES. (a) Not later than 10:00 a.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rates applicable to the determination of US Dollar
Equivalents of amounts denominated in Canadian Dollars and Euro and (ii) give
written notice thereof to the Lenders and the Company. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "RESET Date"), shall remain effective
until the next succeeding Reset Date, and shall for all purposes of this
Agreement (other than Section 10.13 or any other provision expressly requiring
the use of a current Exchange Rate) be the Exchange Rates employed in the
determination of US Dollar Equivalents.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date on which Loans or B/As are outstanding, the Administrative Agent
shall (i) determine the US Tranche Exposure, the Canadian Tranche Exposure and
the Euro Tranche Exposure and (ii) notify the Lenders and the Company of the
results of such determination.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. (a) Subject to the terms and
conditions set forth herein, each US Tranche Lender agrees to make US Tranche
Loans to the Company and the US Borrowing Subsidiaries from time to time during
the Availability Period in US Dollars in an aggregate principal amount at any
time outstanding that will not result in (i) such Lender's US Tranche Exposure
exceeding its US Tranche Commitment or (ii) the aggregate Exposures exceeding
the aggregate Commitments.
(b) Subject to the terms and conditions set forth herein, each
Canadian Tranche Lender agrees from time to time during the Availability Period
(i) to make Canadian Tranche Loans to the Canadian Borrowing Subsidiaries in
Canadian Dollars and/or to accept and purchase or arrange for the acceptance and
purchase of drafts drawn by the Canadian Borrowing Subsidiaries in Canadian
Dollars as B/As, and (ii) to make Canadian Tranche Loans to the Company and the
US Borrowing Subsidiaries in US Dollars, in an aggregate principal amount at any
time outstanding that will not result in (i) such Lender's Canadian Tranche
Exposure exceeding its Canadian Tranche Commitment or (ii) the aggregate
Exposures exceeding the aggregate Commitments.
(c) Subject to the terms and conditions set forth herein, each
Euro Tranche Lender agrees from time to time during the Availability Period to
make Euro Tranche Loans to the Company, the US Borrowing Subsidiaries and the
Euro Borrowing Subsidiaries in Euros or US Dollars in an aggregate principal
amount at any time outstanding that will not result in (i) such Lender's Euro
Tranche Exposure exceeding its Euro Tranche Commitment or (ii) the aggregate
Exposures exceeding the aggregate Commitments.
26
SECTION 2.02. LOANS AND BORROWINGS. (a) Each US Tranche Loan
shall be made as part of a Borrowing consisting of US Tranche Loans made by the
US Tranche Lenders (or their Affiliates as provided in paragraph (b) below)
ratably in accordance with their respective US Tranche Commitments. Each
Canadian Tranche Loan shall be made as part of a Borrowing consisting of
Canadian Tranche Loans made by the Canadian Tranche Lenders (or their Affiliates
as provided in paragraph (b) below) ratably in accordance with their respective
Canadian Tranche Commitments. Each Euro Tranche Loan shall be made as part of a
Borrowing consisting of Euro Tranche Loans made by the Euro Tranche Lenders (or
their Affiliates as provided in paragraph (b) below) ratably in accordance with
their respective Euro Tranche Commitments. Each Competitive Loan shall be made
in accordance with the procedures set forth in Section 2.05. Each Contract Loan
shall be made in accordance with the procedures set forth in paragraph (e)
below. The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; PROVIDED that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required hereunder.
(b) Subject to Section 2.14, (i) each US Tranche Borrowing
shall be comprised entirely of Eurocurrency Loans or ABR Loans as the applicable
Borrower may request in accordance herewith; (ii) each Canadian Tranche
Borrowing shall be comprised entirely of (A) in the case of a Canadian Tranche
Borrowing denominated in Canadian Dollars, Eurocurrency Loans or Canadian Base
Rate Loans as the applicable Borrower may request in accordance herewith, and
(B) in the case of a Canadian Tranche Borrowing denominated in US Dollars,
Eurocurrency Loans or ABR Loans, as the applicable Borrower may request in
accordance herewith; (iii) each Euro Tranche Borrowing shall be comprised
entirely of (A) in the case of a Euro Tranche Borrowing denominated in Euros,
Eurocurrency Loans, and (B) in the case of a Euro Tranche Borrowing denominated
in US Dollars, Eurocurrency Loans or ABR Loans, as the applicable Borrower may
request in accordance herewith; (iv) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans, as the applicable
Borrower may request in accordance herewith; (v) each US Swingline Loan shall be
comprised entirely of ABR Loans; and (vi) each Canadian Swingline Loan shall be
comprised entirely of Canadian Base Rate Loans. Each Lender at its option may
make any Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan (and in the case of an Affiliate, the provisions of
Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same
extent as to such Lender); PROVIDED that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Borrowing (other than a Borrowing comprised of Competitive Loans or Contract
Loans), such Borrowing shall be in an aggregate amount that is at least equal to
the Borrowing Minimum and an integral multiple of the Borrowing Multiple;
PROVIDED that an ABR Borrowing denominated in US Dollars may be made in an
aggregate amount that is equal
27
to the aggregate available US Tranche Commitments, Canadian Tranche Commitments
or Euro Tranche Commitments, as the case may be, and a Canadian Base Rate
Borrowing denominated in Canadian Dollars may be made in an aggregate amount
that is equal to the aggregate available Canadian Tranche Commitments.
Borrowings of more than one Type and Class may be outstanding at the same time;
PROVIDED that there shall not at any time be more than a total of (i) five US
Tranche Eurocurrency Borrowings outstanding, (ii) three Canadian Tranche
Eurocurrency Borrowings outstanding and (iii) three Euro Tranche Eurocurrency
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
(e) At any time, any Borrower and any Lender may agree that
such Lender will make a Loan (a "CONTRACT LOAN") to the Borrower denominated in
US Dollars, Canadian Dollars or Euros and bearing interest at an agreed upon
rate, for an interest period to be agreed upon and upon such other terms as the
applicable Borrower and Lender may agree (it being understood that a Contract
Loan shall not be required to be in any particular minimum amount); PROVIDED,
that, (i) after giving effect to the making of any such Contract Loan, the
aggregate Exposures shall not exceed the aggregate Commitments and (ii) no such
Loan shall be a Contract Loan unless the relevant Borrower and the applicable
Lender expressly agree at the time such Loan is made, and notify the
Administrative Agent, that such Loan shall be a Contract Loan for purposes of
this Agreement. If the applicable Borrower and Lender shall, after any Contract
Loan is made, agree that such Contract Loan shall no longer be a Contract Loan
hereunder and shall notify the Administrative Agent of such agreement, such Loan
shall, as of the date of such agreement, cease to be a Contract Loan or to be
entitled to any further benefits under this Agreement. Contract Loans shall be
deemed Loans for all purposes under this Agreement. Each Borrower and Lender
shall promptly notify the Administrative Agent of (i) the date, principal
amount, currency, maturity, interest rate, Interest Period and Interest Payment
Dates of each Contract Loan made by or to such Lender to such Borrower and (ii)
the date and amount of any repayment or prepayment of any such Contract Loan.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing
of a Type available hereunder, the applicable Borrower, or the Company on behalf
of the applicable Borrower, shall notify the Applicable Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than 2:00 p.m.,
Local Time, three Business Days before the date of the proposed Borrowing, (b)
in the case of a Canadian Base Rate Borrowing, not later than 10:00 a.m., Local
Time, on the date of the proposed Borrowing and, (c) in the case of an ABR
Borrowing, not later than 12:00 noon, Local Time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Applicable Agent of a
written Borrowing Request in a form approved by
28
the Applicable Agent and signed by the applicable Borrower, or by the Company on
behalf of the applicable Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) whether the requested Borrowing is to be a US Tranche
Borrowing, a Canadian Tranche Borrowing or a Euro Tranche Borrowing;
(iii) the currency and aggregate principal amount of the
requested Borrowing;
(iv) the date of the requested Borrowing, which shall be a
Business Day;
(v) the Type of the requested Borrowing;
(vi) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vii) the location and number of the relevant Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
If no currency is specified with respect to any requested Eurocurrency
Borrowing, then the relevant Borrower shall be deemed to have selected (i) in
the case of a US Tranche Borrowing, US Dollars, (ii) in the case of a Canadian
Tranche Borrowing, Canadian Dollars, and (iii) in the case of a Euro Tranche
Borrowing, Euros. If no election as to the Type of Borrowing is specified, then
the requested Borrowing shall be (i) in the case of a Borrowing denominated in
US Dollars, an ABR Borrowing, (ii) in the case of a Borrowing denominated in
Canadian Dollars, a Canadian Base Rate Borrowing, and (iii) in the case of a
Borrowing denominated in Euro, a Eurocurrency Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Borrowing, then the
relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Applicable Agent shall advise each Lender that
will make a Loan as part of the requested Borrowing of the details thereof and
of the amount of the Loan to be made by such Lender as part of the requested
Borrowing.
SECTION 2.04. BANKERS' ACCEPTANCES. (a) Each acceptance and
purchase of B/As of a single Contract Period pursuant to Section 2.01(b) or
Section 2.09 shall be made ratably by the Canadian Tranche Lenders in accordance
with the amounts of their Canadian Tranche Commitments. The failure of any
Canadian Tranche Lender to accept any B/A required to be accepted by it shall
not relieve any other Canadian Tranche
29
Lender of its obligations hereunder; PROVIDED that the Canadian Tranche
Commitments are several and no Canadian Tranche Lender shall be responsible for
any other Canadian Tranche Lender's failure to accept B/As as required.
(b) The B/As of a single Contract Period accepted and
purchased on any date shall be in an aggregate amount that is an integral
multiple of C$1,000,000 and not less than C$5,000,000. The face amount of each
B/A shall be C$100,000 or any whole multiple thereof. If any Canadian Tranche
Lender's ratable share of the B/As of any Contract Period to be accepted on any
date would not be an integral multiple of C$100,000, the face amount of the B/As
accepted by such Lender may be increased or reduced to the nearest integral
multiple of C$100,000 by the Canadian Agent in its sole discretion. B/As of more
than one Contract Period may be outstanding at the same time; PROVIDED that
there shall not at any time be more than a total of three B/A Drawings
outstanding.
(c) To request an acceptance and purchase of B/As, a Borrower
shall notify the Canadian Agent of such request by telephone not later than
10:00 a.m., Local Time, one Business Day before the date of such acceptance and
purchase. Each such telephonic request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Canadian Agent of a
written request in a form approved by the Canadian Agent and signed by such
Borrower. Each such telephonic and written request shall specify the following
information:
(i) the aggregate face amount of the B/As to be accepted and
purchased;
(ii) the date of such acceptance and purchase, which shall be
a Business Day;
(iii) the Contract Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Contract
Period" (and which shall in no event end after the Maturity Date); and
(iv) the location and number of the Borrower's account to
which any funds are to be disbursed, which shall comply with the
requirements of Section 2.07. If no Contract Period is specified with
respect to any requested acceptance and purchase of B/As, then the
Borrower shall be deemed to have selected a Contract Period of 30 days'
duration.
Promptly following receipt of a request in accordance with this paragraph, the
Canadian Agent shall advise each Canadian Tranche Lender of the details thereof
and of the amount of B/As to be accepted and purchased by such Lender.
(d) Each Borrower hereby appoints each Canadian Tranche Lender
as its attorney to sign and endorse on its behalf, manually or by facsimile or
mechanical signature, as and when deemed necessary by such Lender, blank forms
of B/As. It shall
30
be the responsibility of each Canadian Tranche Lender to maintain an adequate
supply of blank forms of B/As for acceptance under this Agreement. Each Borrower
recognizes and agrees that all B/As signed and/or endorsed on its behalf by any
Canadian Tranche Lender shall bind such Borrower as fully and effectually as if
manually signed and duly issued by authorized officers of such Borrower. Each
Canadian Tranche Lender is hereby authorized to issue such B/As endorsed in
blank in such face amounts as may be determined by such Lender; PROVIDED that
the aggregate face amount thereof is equal to the aggregate face amount of B/As
required to be accepted by such Lender. No Canadian Tranche Lender shall be
liable for any damage, loss or claim arising by reason of any loss or improper
use of any such instrument unless such loss or improper use results from the
gross negligence or willful misconduct of such Lender. Each Canadian Tranche
Lender shall maintain a record with respect to B/As (i) received by it from the
Canadian Agent in blank hereunder, (ii) voided by it for any reason, (iii)
accepted and purchased by it hereunder and (iv) canceled at their respective
maturities. Each Canadian Tranche Lender further agrees to retain such records
in the manner and for the periods provided in applicable provincial or Federal
statutes and regulations of Canada and to provide such records to each Borrower
upon its request and at its expense. Upon request by any Borrower, a Lender
shall cancel all forms of B/A that have been pre-signed or pre-endorsed on
behalf of such Borrower and that are held by such Lender and are not required to
be issued pursuant to this Agreement.
(e) Drafts of each Borrower to be accepted as B/As hereunder
shall be signed as set forth in paragraph (d) above. Notwithstanding that any
Person whose signature appears on any B/A may no longer be an authorized
signatory for any of the Lenders or such Borrower at the date of issuance of
such B/A, such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of such issuance
and any such B/A so signed shall be binding on such Borrower.
(f) Upon acceptance of a B/A by a Lender, such Lender shall
purchase, or arrange the purchase of, such B/A from the applicable Borrower at
the Discount Rate for such Lender applicable to such B/A accepted by it and
provide to the Canadian Agent the Discount Proceeds for the account of such
Borrower as provided in Section 2.07. The acceptance fee payable by the Company
to a Lender under Section 2.12 in respect of each B/A accepted by such Lender
shall be set off against the Discount Proceeds payable by such Lender under this
paragraph. Notwithstanding the foregoing, in the case of any B/A Drawing
resulting from the conversion or continuation of a B/A Drawing or Canadian
Tranche Loan pursuant to Section 2.09, the net amount that would otherwise be
payable to such Borrower by each Lender pursuant to this paragraph will be
applied as provided in Section 2.09(f).
(g) Each Lender may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all B/A's accepted and purchased
by it.
31
(h) Each B/A accepted and purchased hereunder shall mature at
the end of the Contract Period applicable thereto.
(i) Each Borrower waives presentment for payment and any other
defense to payment of any amounts due to a Lender in respect of a B/A accepted
and purchased by it pursuant to this Agreement which might exist solely by
reason of such B/A being held, at the maturity thereof, by such Lender in its
own right and each Borrower agrees not to claim any days of grace if such Lender
as holder sues each Borrower on the B/A for payment of the amounts payable by
such Borrower thereunder. On the specified maturity date of a B/A, or such
earlier date as may be required pursuant to the provisions of this Agreement,
each Borrower shall pay the Lender that has accepted and purchased such B/A the
full face amount of such B/A, and after such payment such Borrower shall have no
further liability in respect of such B/A and such Lender shall be entitled to
all benefits of, and be responsible for all payments due to third parties under,
such B/A.
(j) At the option of each Borrower and any Lender, B/A's under
this Agreement to be accepted by that Lender may be issued in the form of
depository bills for deposit with The Canadian Depository for Securities Limited
pursuant to the Depository Bills and Notes Act (Canada). All depository bills so
issued shall be governed by the provisions of this Section 2.04.
SECTION 2.05. COMPETITIVE BID PROCEDURE. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids for Competitive Loans in US
Dollars, Canadian Dollars or Euros and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Loans; PROVIDED that the
aggregate Exposures at any time shall not exceed the aggregate Commitments. To
request Competitive Bids, the Company or the applicable Borrower shall notify
the Applicable Agent of such request by telephone (i) in the case of a
Eurocurrency Competitive Borrowing, not later than 10:00 a.m., Local Time, four
Business Days before the date of the proposed Competitive Borrowing and (ii) in
the case of a Fixed Rate Borrowing not later than 12:00 noon, Local Time, one
Business Day before the date of the proposed Competitive Borrowing. Not more
than three Competitive Bid Requests may be submitted on the same day. Each
telephonic Competitive Bid Request shall be confirmed promptly by hand delivery
or telecopy to the Applicable Agent of a written Competitive Bid Request in a
form approved by the Applicable Agent and signed by the Company. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting the Competitive Bid and the
aggregate amount and currency of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
32
(iii) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Company's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Applicable Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Company in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Applicable Agent and must be received by the Applicable Agent by telecopy, (i)
in the case of a Eurocurrency Competitive Borrowing, not later than 12:00 noon,
Local Time, four Business Days before the date of the proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., Local Time, on the date of the proposed Competitive Borrowing. Competitive
Bids that do not conform to the form approved by the Applicable Agent may be
rejected by the Applicable Agent, and the Applicable Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which may equal the entire principal amount of the
Competitive Borrowing requested by the Company) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Applicable Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
applicable Borrower may accept or reject any Competitive Bid. The Borrower shall
notify the Applicable Agent by telephone, confirmed by telecopy in a form
approved by the Applicable Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, (i) in the case of a Eurocurrency
Competitive Borrowing, not later than 11:00 a.m., Local Time, three Business
Days before the date of the proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 10:30 a.m., Local Time, on the date of
the proposed Competitive Borrowing; PROVIDED that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if such Borrower rejects a Competitive Bid made
at a lower
33
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request and (iv)
to the extent necessary to comply with clause (iii) above, the Borrower may
accept Competitive Bids at the same Competitive Bid Rate in part, which
acceptance, in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid; PROVIDED FURTHER that in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of the Borrowing Multiple in a manner determined by the Borrower. A
notice given by the Borrower pursuant to this paragraph shall be irrevocable.
(e) The Applicable Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Applicable Agent or one of its Affiliates shall
elect to submit a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the applicable Borrower at least one quarter of
an hour earlier than the time by which the other Lenders are required to submit
their Competitive Bids to the Applicable Agent pursuant to paragraph (b) of this
Section.
SECTION 2.06. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, each US Swingline Lender agrees to make US
Swingline Loans in US Dollars to the Company or any US Borrowing Subsidiary, and
each Canadian Swingline Lender agrees to make Canadian Swingline Loans in
Canadian Dollars to any Canadian Borrowing Subsidiary, from time to time during
the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate US Dollar Equivalent of
the Swingline Exposures exceeding US$1,000,000,000, (ii) the aggregate US Dollar
Equivalent of Canadian Swingline Exposure exceeding US$148,665,726, (iii) the
aggregate US Tranche Exposures exceeding the aggregate US Tranche Commitments,
(iv) the aggregate Canadian Tranche Exposures exceeding the Canadian Tranche
Commitments or (v) the aggregate Exposures exceeding the aggregate Commitments;
PROVIDED that (A) no Swingline Lender shall be required to make a Swingline Loan
to refinance an outstanding Swingline Loan and (B) no Swingline Lender shall
make a Swingline Loan if it shall have been notified by the Administrative Agent
at the request of the Required Lenders that an Event of Default has occurred and
is continuing and that, as a result, no further Swingline Loans shall be made by
it (a "Swingline Suspension Notice"). Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers specified above may
borrow, prepay and reborrow Swingline Loans. Each Swingline Loan shall be in an
integral amount of US$1,000,000 or C$1,000,000, as applicable. The Borrowers may
request any US
34
Swingline Loans or Canadian Swingline Loans from one or more of the US Swingline
Lenders or Canadian Swingline Lenders, subject only to the limitation that the
outstanding US Swingline Loans or Canadian Swingline Loans of any Swingline
Lender shall at no time exceed its US Swingline Commitment or Canadian Swingline
Commitment, as the case may be.
(b) To request Swingline Loans, a Borrower shall notify the
Applicable Agent of such request by telephone (confirmed by telecopy) on the day
of a proposed Swingline Loan by not later than 3:00 p.m., Local Time, in the
case of US Swingline Loans (or 4:00 p.m., Local Time, in the case of a US
Swingline Loan to be made by JPMCB), and not later than 11:00 a.m., Local Time,
in the case of Canadian Swingline Loans. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day), the
aggregate amount of the requested Swingline Loans and the amount of the
Swingline Loan to be made by each Swingline Lender. The Applicable Agent will
promptly advise the applicable Swingline Lenders of any such notice received
from such Borrower. The applicable Swingline Lenders shall make their Swingline
Loans available to such Borrower by means of a transfer of funds to the general
deposit account of such Borrower with the Applicable Agent (or another account
in the jurisdiction of the Applicable Agent specified by such Borrower in its
request for such Swingline Loan) by 4:00 p.m., Local Time, on the requested date
of such Swingline Loans (or 5:00 p.m., Local Time, in the case of a US Swingline
Loan to be made by JPMCB and requested after 3:00 p.m., Local Time).
(c) By written notice given to the Applicable Agent not later
than 10:00 a.m., Local Time, on any Business Day, each US Swingline Lender may
require the US Tranche Lenders to acquire participations on such Business Day in
all or a portion of its US Tranche Swingline Loans outstanding and each Canadian
Swingline Lender may require the Canadian Tranche Lenders to acquire
participations on such Business Day in all or a portion of its Canadian Tranche
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which the applicable Lenders will participate. Promptly upon
receipt of such notice, the Applicable Agent will give notice thereof to each
applicable Lender, specifying in such notice the percentage of the applicable
Swingline Loans allocated to such Lender. Each Lender agrees, upon receipt of
notice as provided above, to pay to the Applicable Agent, for the account of
each applicable Swingline Lender, the percentage of such Swingline Loans
allocated to such Lender. Each US Tranche Lender and Canadian Tranche Lender
acknowledges and agrees that, in the absence of a Swingline Suspension Notice
received by the applicable Swingline Lender not less than two Business Days
prior to the making of the applicable Swingline Loan, its obligation to acquire
participations in each Swingline Loan pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the US Tranche Commitments or the Canadian Tranche Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its
obligation
35
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Applicable Agent shall promptly pay pro
rata to the applicable Swingline Lenders the amounts so received by it from the
Lenders. The Applicable Agent shall notify the relevant Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph. Any
amounts received by a Swingline Lender from any Borrower (or other party on
behalf of such Borrower) in respect of a Swingline Loan after receipt by such
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Applicable Agent; any such amounts received by the
Applicable Agent shall be promptly remitted by the Applicable Agent to the
Lenders that shall have made their payments pursuant to this paragraph and to
the applicable Swingline Lenders, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the applicable Borrower of any default in the payment thereof.
SECTION 2.07. FUNDING OF BORROWINGS AND B/A DRAWINGS. (a) Each
Lender shall make each Loan (other than a Contract Loan or a Swingline Loan) to
be made by it and disburse the Discount Proceeds (net of applicable acceptance
fees) of each B/A to be accepted and purchased by it hereunder on the proposed
date thereof by wire transfer of immediately available funds in the applicable
currency by 2:00 p.m., Local Time, to the account of the Applicable Agent most
recently designated by it for such purpose by notice to the applicable Lenders.
The Applicable Agent will make such Loans or Discount Proceeds (net of
applicable acceptance fees) available to the relevant Borrower by promptly
crediting the amounts so received, in like funds, to an account of such Borrower
maintained by the Applicable Agent (or another account specified by such
Borrower in the applicable Borrowing Request or request for an acceptance and
purchase of B/As) (i) in New York City, in the case of Loans denominated in US
Dollars (ii) in London, in the case of Loans denominated in Euros and (iii) in
Toronto, in the case of Loans denominated in Canadian Dollars or B/As. Each
Lender shall make each Contract Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds by the time and to
the account agreed upon by the relevant Borrower and the applicable Lender.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing or acceptance and
purchase of B/As that such Lender will not make available to the Applicable
Agent such Lender's share of such Borrowing or the applicable Discount Proceeds
(net of applicable acceptance fees), the Applicable Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing or the applicable Discount
Proceeds (net of applicable acceptance fees) available to the Applicable Agent,
and the Applicable Agent has made an amount corresponding to such
36
share available to such Borrower, then the applicable Lender and such Borrower
severally agree to pay to the Applicable Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date of
payment to the Applicable Agent, at (i) in the case of such Lender, the rate
reasonably determined by the Applicable Agent to be the cost to it of funding
such amount or (ii) in the case of such Borrower, the interest rate applicable
to the subject Loan or the cost to the Agent of funding the net proceeds of the
subject B/As. If such Lender pays such amount to the Applicable Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing or such
Lender's purchase of B/As and the Applicable Agent shall return to such Borrower
any amount (including interest) paid by such Borrower to the Applicable Agent
pursuant to this paragraph.
SECTION 2.08. REPAYMENT OF BORROWINGS AND B/A DRAWINGS;
EVIDENCE OF DEBT. (a) Each Borrower hereby unconditionally promises to pay to
the Applicable Agent for the accounts of the applicable Lenders or Swingline
Lenders (i) unless otherwise specified in this Section 2.08, the then unpaid
principal amount of the Loans comprising each Borrowing of such Borrower on the
Maturity Date and the face amount of each B/A, if any, accepted by such Lender
as provided in Section 2.04, (ii) the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable thereto and
(iii) the then unpaid principal amount of each Swingline Loan on the earlier of
the Maturity Date and first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; PROVIDED that on each date that a US Tranche
Borrowing (or a Competitive Borrowing in US Dollars) or a Canadian Tranche
Borrowing (or a Competitive Borrowing in Canadian Dollars) is made by any
Borrower, such Borrower shall repay all US Tranche Swingline Loans or Canadian
Tranche Swingline Loans, as the case may be, made to it and then outstanding.
Each Borrower hereby unconditionally promises to pay to the applicable Lender
the then unpaid principal amount of each Contract Loan on the date or dates
agreed by such Borrower and such Lender. Each Borrower agrees to repay the
principal amount of each Loan made to such Borrower and the accrued interest
thereon and the face amount of each B/A drawn by such Borrower in the currency
of such Loan or B/A.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the obligations of each Borrower to
such Lender resulting from the Loans made and the B/As accepted by such Lender,
including the amounts of principal and interest and amounts in respect of B/As
payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Borrowing made hereunder, the Class, Type
and currency thereof and the Interest Period applicable thereto, and the amount
of each B/A Drawing made hereunder and the Contract Period applicable thereto,
(ii) the amount of any
37
principal, interest or amount in respect of any B/A due and payable or to become
due and payable from each Borrower to each Lender hereunder and (iii) the amount
of any sum received by any Agent hereunder for the accounts of the Lenders and
each Lender's share thereof. Each of the London Agent and the Canadian Agent
shall furnish to the Administrative Agent, promptly after the making of any Loan
or Borrowing or the acceptance of any B/A with respect to which it is the
Applicable Agent or the receipt of any payment of principal or interest with
respect to any such Loan or Borrowing with respect to which it is the Applicable
Agent, information with respect thereto that will enable the Administrative
Agent to maintain the accounts referred to in the preceding sentence. The
Administrative Agent shall notify in writing the London Agent or the Canadian
Agent, as applicable, promptly after the making of any Loan or Borrowing with
respect to which it is the Applicable Agent or the receipt of payment of any
principal with respect to any such Loan or Borrowing.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans made to it or the B/As drawn by it in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
to any Borrower be evidenced by a promissory note if it is the policy of such
Lender to obtain promissory notes in transactions comparable to those provided
for herein or if has another business reason for requesting such a promissory
note. In such event, each applicable Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in the form
of Exhibit D hereto. Thereafter, the Loans evidenced by each such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 10.04) be represented by one or more promissory notes in
such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. INTEREST ELECTIONS. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Each B/A Drawing shall have a Contract
Period as specified in the applicable request therefor. After the initial
Borrowings under any Tranche and, if applicable, B/A Drawings, the Borrowers may
elect to convert and continue such Borrowings and, if applicable, B/A Drawings
to or as other Borrowings and, if applicable, B/A Drawings under such Tranche as
provided in this Section (it being understood that no B/A Drawing may be
converted or continued other than at the end of the Contract Period applicable
thereto). The Borrowers may elect different options with respect to different
portions of the affected Borrowings or B/A Drawings, in which case
38
each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowings or accepting the B/As comprising such B/A Drawings,
as the case may be, and any Loans or B/As resulting from an election made with
respect to any such portion shall be considered a separate Borrowing or B/A
Drawing. Notwithstanding any other provision of this Section, no Borrowing or
B/A Drawing may be converted into or continued as a Borrowing or B/A Drawing
with an Interest Period or Contract Period, as applicable, ending after the
Maturity Date. This Section shall not apply to Swingline Loans, Competitive
Loans or to Contract Loans, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower,
or the Company on its behalf, shall notify the Applicable Agent of such election
by telephone (x) in the case of an election that would result in a Borrowing, by
the time and date that a Borrowing Request would be required under Section 2.03
if such Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election and (y) in the case
of an election that would result in a B/A Drawing or continuation of a B/A
Drawing, by the time and date that a request would be required under Section
2.04 if such Borrower were requesting an acceptance and purchase of B/As to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower, or the Company on its behalf. Notwithstanding any contrary
provision herein, this Section shall not be construed to permit any Borrower to
(i) change the currency of any Borrowing, (ii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert
any Borrowing or B/A Drawing to a Borrowing or B/A Drawing not available under
the Class of Commitments pursuant to which such Borrowing or B/A Drawing was
made.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.03 or 2.04:
(i) the Borrowing or B/A Drawing to which such Interest
Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing or B/A Drawing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing or B/A Drawing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) in the case of an election with respect to a US Tranche
Borrowing, whether a Eurocurrency Borrowing or an ABR Borrowing is
elected; in the case of an election with respect to a Canadian Tranche
Borrowing denominated in Canadian Dollars or a B/A Drawing, whether a
Eurocurrency Borrowing, a
39
Canadian Base Rate Borrowing or a B/A Drawing is elected; and in the
case of an election with respect to a Canadian Tranche Borrowing
denominated in US Dollars, whether a Eurocurrency Borrowing or an ABR
Borrowing is elected; and
(iv) in the case of an election of a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period", and in the case of an election of a B/A
Drawing, the Contract Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Contract Period";
PROVIDED that no Eurocurrency Borrowing or B/A Drawing may be elected
with an Interest Period or Contract Period, as the case may be, that
would extend after the Maturity Date.
If any such Interest Election Request requests a Eurocurrency Borrowing or a B/A
Drawing but does not specify an Interest Period or Contract Period, then the
Borrower shall be deemed to have selected an Interest Period or Contract Period
of one month's duration, as the case may be.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing or B/A Drawing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing or B/A
Drawing prior to the end of the Interest Period or Contract Period applicable
thereto, then, unless such Borrowing or B/A Drawing is repaid as provided
herein, at the end of such Interest Period or Contract Period, such Borrowing or
B/A Drawing shall (i) in the case of a Eurocurrency Borrowing denominated in US
Dollars, be converted to an ABR Borrowing, (ii) in the case of a Eurocurrency
Borrowing denominated in Canadian Dollars or a B/A Drawing, be converted into a
Canadian Base Rate Borrowing and (iii) in the case of any other Eurocurrency
Borrowing, become due and payable on the last day of such Interest Period.
(f) Upon the conversion of any Canadian Tranche Borrowing (or
portion thereof), or the continuation of any B/A Drawing (or portion thereof),
to or as a B/A Drawing, the net amount that would otherwise be payable to a
Borrower by each Lender pursuant to Section 2.04(f) in respect of such new B/A
Drawing shall be applied against the principal of the Canadian Tranche Loan made
by such Lender as part of such Canadian Tranche Borrowing (in the case of a
conversion), or the reimbursement obligation owed to such Lender under Section
2.04(i) in respect of the B/As accepted by such Lender as part of such maturing
B/A Drawing (in the case of a continuation), and such Borrower shall pay to such
Lender an amount equal to the difference between the principal amount of such
Canadian Tranche Loan or the aggregate face amount of such maturing B/As, as the
case may be, and such net amount.
40
(g) The conversion or continuation of any Borrowing or B/A
Drawing shall not constitute a repayment of amounts outstanding or a new advance
of funds hereunder.
SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments of any Class; PROVIDED that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of the Borrowing Multiple and not less than the Borrowing Minimum, (ii) the
Company shall not terminate or reduce the US Tranche Commitments if, after
giving effect to any concurrent prepayment of the US Tranche Loans in accordance
with Section 2.11, aggregate US Tranche Exposures would exceed the aggregate US
Tranche Commitments, (iii) the Company shall not terminate or reduce the
Canadian Tranche Commitments if, after giving effect to any concurrent
prepayment of the Canadian Tranche Loans in accordance with Section 2.11, the
aggregate Canadian Tranche Exposures would exceed the aggregate Canadian Tranche
Commitments, (iv) the Company shall not terminate or reduce the Euro Tranche
Commitments if, after giving effect to any concurrent prepayment of the Euro
Tranche Loans in accordance with Section 2.11, the aggregate Euro Tranche
Exposures would exceed the aggregate Euro Tranche Commitments and (v) the
Company shall not terminate or reduce any Commitments if, after giving effect to
any concurrent prepayment of Loans in accordance with Section 2.11, the
aggregate Exposures would exceed the aggregate Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments of any Class under paragraph (b)
of this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying the effective date of such election.
Promptly following receipt of any such notice, the Administrative Agent shall
advise the other Agents and the applicable Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
PROVIDED that a notice of termination of the Commitments delivered by the
Company may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the Company
(by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments
of any Class shall be made ratably among the applicable Lenders in accordance
with their respective Commitments of such Class.
SECTION 2.11. PREPAYMENT OF LOANS. (a) Any Borrower, or the
Company on behalf of any Borrower, shall have the right at any time and from
time to time to prepay any Borrowing and amounts owed in respect of outstanding
B/As of such Borrower in whole or in part, subject to prior notice in accordance
with paragraph (d) of
41
this Section; PROVIDED, that, unless the applicable Borrowers and Lenders shall
have otherwise agreed at the time such Loans were made, Competitive Loans or
Contract Loans may be prepaid only with the consent of the Lenders making such
Loans.
(b) If the aggregate Exposures of any Class shall exceed the
aggregate Commitments of such Class, then (i) on the last day of any Interest
Period for any Eurocurrency Borrowing of such Class (or, in the case of the
Canadian Commitments, the last day of any Contract Period for any B/A Drawing),
and (ii) on any other date in the event ABR Borrowings or Canadian Base Rate
Borrowings shall be outstanding under such Class, the applicable Borrowers shall
prepay Loans of such Class in an amount equal to the lesser of (A) the amount
necessary to eliminate such excess (after giving effect to any other prepayment
of Loans on such day) and (B) the amount of the applicable Borrowings or B/A
Drawings referred to in clause (i) or (ii), as applicable. If, on any Reset
Date, the aggregate amount of the Exposures of any Class shall exceed 105% of
the aggregate Commitments of such Class, then the applicable Borrowers shall,
not later than the next Business Day, prepay one or more Borrowings of such
Class (or, in the case of the Canadian Commitments, amounts owing in respect of
outstanding B/As) in an aggregate principal amount sufficient to eliminate such
excess.
(c) Prior to any optional or mandatory prepayment of
Borrowings or amounts owing in respect of outstanding B/A Drawings hereunder,
the applicable Borrower shall select the Borrowing or Borrowings and B/A
Drawings to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to paragraph (d) of this Section.
(d) The applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Applicable Agent by telephone (confirmed
by telecopy) of any prepayment of a Borrowing or amounts owing in respect of an
outstanding B/A Drawing hereunder (i) in the case of a Eurocurrency Borrowing,
not later than 11:00 a.m., Local Time, three Business Days before the date of
such prepayment, (ii) in the case of an ABR Borrowing, a Canadian Base Rate
Borrowing or any amount owed in respect of an outstanding B/A Drawing, not later
than 11:00 a.m., Local Time, one Business Day before the date of such prepayment
and (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, Local Time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof, or amount owed in respect of an outstanding
B/A Drawing or portion thereof, to be prepaid; PROVIDED that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.10(c), then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.10(c). Promptly following receipt of any such notice,
the Applicable Agent shall advise the applicable Lenders of the contents
thereof. Each partial prepayment of any Borrowing or amounts owing in respect of
a B/A Drawing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in
42
Section 2.02 or an acceptance and purchase of B/As as provided in Section 2.04.
Each prepayment of a Borrowing or B/A Drawing shall be applied ratably to the
Loans included in the prepaid Borrowing or the B/As included in such B/A
Drawing. Prepayments shall be accompanied by (i) accrued interest to the extent
required by Section 2.13 and (ii) break funding payments pursuant to Section
2.16.
(e) Amounts to be applied pursuant to this Section or Article
VII to prepay or repay amounts to become due with respect to outstanding B/As
shall be deposited in the Prepayment Account (as defined below). The Canadian
Agent shall apply any cash deposited in the Prepayment Account allocable to
amounts to become due in respect of B/As on the last day of their respective
Contract Periods until all amounts due in respect of outstanding B/As have been
prepaid or until all the allocable cash on deposit has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by a Borrower with the Canadian Agent and over which the Canadian
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal for application in accordance with this paragraph (e). The
Canadian Agent will, at the request of such Borrower, invest amounts on deposit
in the Prepayment Account in short-term, cash equivalent investments selected by
the Canadian Agent in consultation with such Borrower that mature prior to the
last day of the applicable Contract Periods of the B/As to be prepaid; PROVIDED,
HOWEVER, that the Canadian Agent shall have no obligation to invest amounts on
deposit in the Prepayment Account if a Default or Event of Default shall have
occurred and be continuing. Such Borrower shall indemnify the Administrative
Agent for any losses relating to the investments so that the amount available to
prepay amounts due in respect of B/As on the last day of the applicable Contract
Period is not less than the amount that would have been available had no
investments been made pursuant thereto. Other than any interest earned on such
investments (which shall be for the account of such Borrower, to the extent not
necessary for the prepayment of B/As in accordance with this Section), the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans and all amounts due
hereunder has been accelerated pursuant to Article VII, the Canadian Agent may,
in its sole discretion, apply all amounts on deposit in the Prepayment Account
to satisfy any of the Obligations in respect of Canadian Tranche Loans and B/As
(and each Borrower hereby grants to the Canadian Agent a security interest in
its Prepayment Account to secure such Obligations).
SECTION 2.12. FEES. (a) The Company agrees to pay to the
Administrative Agent, in US Dollars, for the account of the office (or
Affiliate) of each Lender from which such Lender would make Loans to the Company
in US Dollars hereunder (which office or Affiliate shall be specified by each
Canadian Tranche Lender and Euro Tranche Lender in a notice delivered to the
Administrative Agent prior to the initial payment to such Lender under this
paragraph), a facility fee, which shall accrue at the Applicable Rate on the
daily amount of the sum of (i) such Lender's US ▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇, (▇▇) the US Dollar Equivalent of such Lender's Canadian Tranche
Commitment and (iii) the US Dollar Equivalent of such Lender's Euro Tranche
Commitment (in each case whether used or unused) during the period from and
including the date hereof to but excluding the date on which the last of such
Commitments terminates; PROVIDED that, if such Lender continues to have any
Exposure, including Swingline Exposures, of any Class after its Commitment of
such Class terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender's Exposure, including Swingline Exposures, of such
Class to but excluding the date on which such Lender ceases to have any such
Exposure, including Swingline Exposures. Accrued facility fees shall be payable
in arrears on the last day of March, June, September and December of each year,
commencing on the first such date to occur after the date hereof, and on the
date on which all the Commitments shall have terminated and the Lenders shall
have no further Exposures, including Swingline Exposures. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) The applicable Canadian Borrowing Subsidiary agrees to pay
to the Canadian Agent, for the account of each Canadian Tranche Lender, on each
date on which B/As drawn by such Canadian Borrowing Subsidiary are accepted
hereunder, in Canadian Dollars, an acceptance fee equal to the (i) the product
of the Applicable Rate and the face amount of each B/A accepted by such Lender
multiplied by (ii) a fraction the numerator of which is the number of days in
the Contract Period applicable to such B/A and the denominator of which is 365.
(c) For each day on which the sum of (i) the aggregate US
Tranche Exposures, (ii) the US Dollar Equivalent of the aggregate Canadian
Tranche Exposures and (iii) the US Dollar Equivalent of the aggregate Euro
Tranche Exposures shall exceed 50% of the sum of (x) the aggregate US Tranche
Commitments, (y) the US Dollar Equivalent of the aggregate Canadian Tranche
Commitments and (z) the US Dollar Equivalent of the aggregate Euro Tranche
Commitments, a utilization fee, which shall accrue at a rate of 0.050% per
annum, shall be paid to each Lender, through the Applicable Agents, (A) by the
Company and/or US Borrowing Subsidiaries in US Dollars (i) on such Lender's US
Tranche Percentage of the aggregate US Tranche Exposures and (ii) on such
Lender's Canadian Tranche Percentage of the portion of the Canadian Tranche
Exposure attributable to Canadian Tranche Loans made to the Company, (B) by the
Canadian Borrowing Subsidiaries in US Dollars on such Lender's Canadian Tranche
Percentage of the portion of the Canadian Tranche Exposure attributable to
Canadian Tranche Loans made to and B/As accepted at the request of the Canadian
Borrowing Subsidiaries and (C) by the Company or the Euro Borrowing Subsidiaries
in US Dollars on such Lender's Euro Tranche Percentage of the US Dollar
Equivalent of the aggregate Euro Tranche Exposures. The accrued utilization
fees, if any, shall be payable in arrears on the last day of each March, June,
September and December and on the Maturity Date. All utilization fees shall be
computed on the basis
44
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) The Company agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Company and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Agents specified above for distribution,
in the case of facility fees and utilization fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan denominated in US Dollars) shall bear
interest at the Alternate Base Rate.
(b) The Loans comprising each Canadian Base Rate Borrowing
(including each Swingline Loan denominated in Canadian Dollars) shall bear
interest at the Canadian Base Rate.
(c) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Revolving Borrowing, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate, or (ii)
in the case of a Eurocurrency Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(d) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(e) Each Contract Loan shall bear interest at a rate per annum
agreed upon between the applicable Borrower and Lender.
(f) Notwithstanding the foregoing, if any principal of or
interest on any Loan, any amount owed in respect of any B/A or any fee payable
by any Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% per annum plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section, (ii) in the case
of any other amount payable in US Dollars, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) above and (iii) in the case of any other
amount payable in Canadian Dollars, 2% plus the rate applicable to Canadian Base
Rate Loans as provided in paragraph (b) above.
(g) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; PROVIDED that (i) interest accrued
pursuant to
45
paragraph (f) above shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurocurrency Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(h) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Canadian
Base Rate or the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Canadian Base Rate or LIBO Rate shall be
determined by the Applicable Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period;
or
(b) the Applicable Agent is advised by a majority in interest
of the Lenders that would participate in such Borrowing that the LIBO
Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
then the Applicable Agent shall give notice thereof to the applicable Borrower
and the applicable Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Applicable Agent notifies the applicable Borrower and
the applicable Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of
any Borrowing denominated in such currency to, or continuation of any Borrowing
denominated in such currency as a Eurocurrency Borrowing shall be ineffective,
and any Eurocurrency Borrowing denominated in such currency that is requested to
be continued shall be repaid on the last day of the then current Interest Period
applicable thereto, and (ii) any Borrowing Request for a Eurocurrency Borrowing
denominated in such currency shall be ineffective.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law or the
applicability of any Statutory Reserves shall:
46
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender; or
(ii) impose on any Lender or the London or Canadian interbank
market any other condition affecting this Agreement or Eurocurrency
Loans made by such Lender or participations therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or obtaining funds for the
purchase of B/As (or of maintaining its obligation to make any such Loan or to
accept and purchase B/As) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Company will pay or cause the other Borrowers to pay to
such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) If any Lender reasonably determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by, such
Lender, to a level below that which such Lender or such Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Company will pay or cause the
other Borrowers to pay to such Lender , as the case may be, such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) Each Lender shall determine the amount or amounts
necessary to compensate such Lender or such Lender's holding company, as the
case may be, as specified in paragraph (a) or (b) of this Section using the
methods customarily used by it for such purpose (and if such Lender uses more
than one such method, the method used hereunder shall be that which most
accurately determines such amount or amounts). A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or such Lender's
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section, and setting forth in reasonable detail the calculations used by
such Lender to determine such amount, shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay or cause the
other Borrowers to pay to such Lender the amount shown as due on any such
certificate within 15 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; PROVIDED that the Company shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law
47
giving rise to such increased costs or reductions and delivers a certificate
with respect thereto as provided in paragraph (c) above; PROVIDED FURTHER that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan to a Loan
of a different Type or Interest Period other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue
or prepay any Loan or to issue B/As for acceptance and purchase on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(d) and is revoked in accordance
therewith), or (d) the assignment or deemed assignment of any Eurocurrency Loan,
or Fixed Rate Loan or the right to receive payment in respect of a B/A other
than on the last day of the Interest Period or Contract Period, as the case may
be, applicable thereto as a result of a request by the Company pursuant to
Section 2.19, then, in any such event, the applicable Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurocurrency Loan such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest that would have accrued on the principal amount of
such Loan had such event not occurred, at the LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest that would accrue on
such principal amount for such period at the interest rate such Lender would bid
were it to bid, at the commencement of such period, for deposits in the
applicable currency of a comparable amount and period from other banks in the
London interbank market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section, and
setting forth in reasonable detail the calculations used by such Lender to
determine such amount or amounts, shall be delivered to the applicable Borrower
and shall be conclusive absent manifest error. The applicable Borrower shall pay
such Lender the amount shown as due on any such certificate within 15 Business
Days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account
of any Borrower in respect of any Obligation hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; PROVIDED that if any Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, the London Agent, the Canadian
Agent or the applicable Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
48
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative
Agent, the London Agent, the Canadian Agent and each Lender, within 15 Business
Days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by such Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of any Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability setting
forth in reasonable detail the circumstances giving rise thereto and the
calculations used by such Lender to determine the amount thereof delivered to
the Company by a Lender, or by an Agent, on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate; PROVIDED that such Lender has
received written notice from the Company advising it of the availability of such
exemption or reduction and containing all applicable documentation.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SETOFFS. (a) Except as agreed by the relevant Borrower and the applicable
Lenders with respect to Contract Loans, each Borrower shall make each payment
required to be made by it hereunder or under any other Loan Document (whether of
principal, interest or fees, or of amounts payable under Section 2.15, 2.16 or
2.17, or otherwise) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time (or any other applicable
49
time agreed by the relevant Borrower and the applicable Lenders with respect to
Contract Loans) on any date may, in the discretion of the Applicable Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Applicable
Agent to the applicable account specified in Schedule 2.18 for the account of
the applicable Lenders or, in any such case, to such other account as the
Applicable Agent shall from time to time specify in a notice delivered to the
Company and the applicable Borrower; PROVIDED that payments to the Swingline
Lenders or the applicable Lenders in respect of Contract Loans and payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein (it being agreed that the Borrowers will
be deemed to have satisfied their obligations with respect to payments referred
to in this proviso if they shall make such payments to the persons entitled
thereto in accordance with instructions provided by the Administrative Agent;
the Administrative Agent agrees to provide such instructions upon request, and
no Borrower will be deemed to have failed to make such a payment if it shall
transfer such payment to an improper account or address as a result of the
failure of the Administrative Agent to provide proper instructions). The
Applicable Agent shall distribute any such payments received by it for the
account of any Lender or other Person promptly, in accordance with customary
banking practices, following receipt thereof at the appropriate lending office
or other address specified by such Lender or other Person. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder of principal or interest in respect of
any Loan shall be made in the currency of such Loan; all other payments
hereunder and under each other Loan Document shall be made in US Dollars. Any
payment required to be made by an Agent hereunder shall be deemed to have been
made by the time required if such Agent shall, at or before such time, have
taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used by
such Agent to make such payment. Any amount payable by any Agent to one or more
Lenders in the national currency of a member state of the European Union that
has adopted the Euro as its lawful currency shall be paid in Euros.
(b) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its US Tranche Loans, Canadian Tranche Loans, Euro Tranche Loans or
participations in Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its US Tranche Loans, Canadian
Tranche Loans, Euro Tranche Loans and participations in Swingline Loans and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the US Tranche Loans, Canadian Tranche Loans, Euro
Tranche Loans and participations in Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be
50
shared by the Lenders ratably in accordance with the aggregate amount of their
respective US Tranche Loans, Canadian Tranche Loans, Euro Tranche Loans and
participations in Swingline Loans and accrued interest thereon; PROVIDED that
(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 any payment made by any Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in Swingline Loans to any assignee or participant, other
than to the Company or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each 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 such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation. Any
purchaser of a participation under this paragraph shall have the benefit of
Sections 2.15, 2.16 and 2.17 with respect to the participation purchased, but
shall not be deemed by virtue of such purchase to have extended any Commitment
that it had not extended prior to such purchase.
(c) Unless the Applicable Agent shall have received notice
from the relevant Borrower prior to the date on which any payment is due for the
account of all or certain of the Lenders hereunder that such Borrower will not
make such payment, the Applicable Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the applicable Lenders , as the case may be, the
amount due. In such event, if such Borrower has not in fact made such payment,
then each of the applicable Lenders severally agrees to repay to the Applicable
Agent forthwith on demand the amount so distributed to such Lender or Issuing
Bank with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Applicable
Agent, at a rate determined by the Applicable Agent in accordance with banking
industry practices on interbank compensation.
(d) If any Lender shall fail to make any payment required to
be made by it to any Agent pursuant to this Agreement, then the Agents may, in
their discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by them for the account of such Lender to satisfy
such Lender's obligations to the Agents until all such unsatisfied obligations
are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall consult with the Company
51
regarding any actions that could be taken to reduce amounts payable under such
Sections and the costs of taking such actions and shall, at the request of the
Company following such consultations, use reasonable efforts to designate a
different lending office for funding or booking its Loans 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 2.15 or 2.17,
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 Company hereby agrees to pay all reasonable, direct, out-of-pocket
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under the Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); PROVIDED that (i) the
Company shall have received the prior written consent of the Administrative
Agent (and if a US Tranche Commitment or a Canadian Tranche Commitment is being
assigned, the Swingline Lenders), which consent shall not be unreasonably
withheld and (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee or the Company. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Company to
require such assignment and delegation cease to apply.
SECTION 2.20. DESIGNATION OF BORROWING SUBSIDIARIES. The
Company may at any time and from time to time designate any Subsidiary as a US
Borrowing Subsidiary or a Euro Borrowing Subsidiary or designate any Canadian
Subsidiary as a Canadian Borrowing Subsidiary by delivery to the Administrative
Agent of a Borrowing Subsidiary Agreement executed by such Subsidiary and the
Company, and upon such delivery such Subsidiary shall for all purposes of this
Agreement be a US Borrowing Subsidiary, a Euro Borrowing Subsidiary or a
Canadian Borrowing Subsidiary, as the case may be, and a party to this Agreement
until the Company shall have executed and delivered to the Administrative Agent
a Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon
such Subsidiary shall cease to be a US Borrowing Subsidiary, a Euro Borrowing
Subsidiary or a Canadian Borrowing Subsidiary, as the case may be, and a party
to this Agreement. Notwithstanding the preceding sentence, no Borrowing
Subsidiary Termination will become effective as to any Borrowing Subsidiary
52
at a time when any principal of or interest on any Loan to such Borrowing
Subsidiary shall be outstanding hereunder, PROVIDED that such Borrowing
Subsidiary Termination shall be effective to terminate the right of such
Borrowing Subsidiary, as the case may be, to make further Borrowings under this
Agreement. As soon as practicable upon receipt of a Borrowing Subsidiary
Agreement, the Administrative Agent shall send a copy thereof to each Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and each other Borrower represents and warrants to
the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. The Company and each of
the Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within the Company's and each other Borrower's corporate powers and have
been duly authorized by all necessary corporate and, if required, stockholder
action. This Agreement has been duly executed and delivered by the Company and
each other Borrower and constitutes a legal, valid and binding obligation of
each of them, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Company or any other Borrower or any order of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Company or any
Subsidiary or their assets, or give rise to a right thereunder to require any
payment to be made by the Company or any Subsidiary, and (d) will not result in
the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Company has heretofore furnished to the Lenders its consolidated balance
sheet
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and statements of income, stockholders' equity and cash flows as of and for the
fiscal year ended June 30, 2003 (the "ANNUAL FINANCIAL STATEMENTS"), reported on
by Deloitte & Touche, independent public accountants, certified by its chief
financial officer and its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for the fiscal quarters ended
September 30, 2003, December 31, 2003 and March 31, 2004 (together, the
"QUARTERLY FINANCIAL STATEMENTS"), certified by one of its Financial Officers.
The Annual Financial Statements and the Quarterly Financial Statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and the consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to, in the case
of the Quarterly Financial Statements, normal year-end adjustments and the
absence of footnotes.
(b) Since March 31, 2004, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. The Company and each Material
Subsidiary has good title to, or valid leasehold interests in, all its real and
personal property material to its business, except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes and except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company and its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that involve this Agreement or the
Transactions.
(b) Except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, none of the Company and the Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. The Company
and each Material Subsidiary is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure
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to be in compliance, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08. FEDERAL RESERVE REGULATIONS. (a) Neither any
Borrower nor any Subsidiary is engaged principally, or as a substantial part of
its activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock (within the meaning of Regulation U).
(b) No part of the proceeds of any Loan has been or will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry Margin Stock (as defined in Regulation U of the
Board) or to refinance Indebtedness originally incurred for such purpose, or in
any manner or for any purpose that has resulted or will result in a violation of
Regulation U or X of the Board.
SECTION 3.09. INVESTMENT AND HOLDING COMPANY STATUS. Neither
the Borrowers nor any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.10. TAXES. The Company and the Material Subsidiaries
have timely filed or caused to be filed all Tax returns and reports required to
have been filed and have paid or caused to be paid all Taxes required to have
been paid by them, except (a) any Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Subsidiary has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than US$100,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
US$100,000,000 the fair market value of the assets of all such underfunded
Plans.
SECTION 3.12. DISCLOSURE. Neither the Confidential Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of the Borrowers to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder
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(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. This Agreement shall become
effective on the date on which each of the following conditions is satisfied (or
waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
of the Company, substantially in the form of Exhibit C, and covering
such other matters relating to the Company, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The
Company hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrowers, the authorization of the Transactions and
any other legal matters relating to the Borrowers, this Agreement or
the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 (without giving effect to the parenthetical in such
paragraph (a)).
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder.
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(f) The commitments under the Company's Amended and Restated
364-Day Credit Agreement dated as of September 30, 2003 shall have been
or shall simultaneously be terminated and the principal of and interest
accrued on all loans outstanding thereunder and all fees and other
amounts accrued or owing thereunder shall have been or shall
simultaneously be paid in full.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and accept and
purchase B/As shall not become effective unless each of the foregoing conditions
is satisfied (or waived pursuant to Section 10.02) at or prior to 5:00 p.m., New
York City time, on June 30, 2004 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing or to accept and purchase any
B/A is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrowers set
forth in this Agreement (other than the representations set forth in
Sections 3.04(b) and 3.06(a)) shall be true and correct on and as of
the date of such Borrowing or acceptance and purchase of B/As.
(b) At the time of and immediately after giving effect to such
Borrowing or acceptance and purchase of B/As, no Default shall have
occurred and be continuing.
Each Borrowing or acceptance and purchase of B/As shall be deemed to constitute
a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. INITIAL CREDIT EVENT FOR EACH BORROWING
SUBSIDIARY. The obligation of each Lender to make Loans to or accept B/As at the
request of any Borrowing Subsidiary is subject to the satisfaction of the
following conditions:
(a) The Administrative Agent (or its counsel) shall have
received a Borrowing Subsidiary Agreement of such Borrowing Subsidiary
duly executed by all parties thereto.
(b) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the formation, existence and good
standing of such Borrowing Subsidiary, the authorization of the
Transactions insofar as they relate to such Borrowing Subsidiary and
any other legal matters relating to such Borrowing
57
Subsidiary, its Borrowing Subsidiary Agreement or such Transactions,
all in form and substance satisfactory to the Administrative Agent and
its counsel.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan, each amount owed in respect of any B/A,
and all fees and other amounts payable hereunder shall have been paid in full,
the Company and each other Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Company will furnish to the Administrative Agent:
(a) within 90 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Deloitte &
Touche or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of the Company and its consolidated subsidiaries
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Company and its consolidated subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Company certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto;
58
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Company or any of its subsidiaries with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed by the Company to its shareholders
generally, as the case may be;
(e) promptly, but not later than five Business Days after the
publication of any change by ▇▇▇▇▇'▇ or S&P in its Rating, notice of
such change; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any of its subsidiaries, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
Reports required to be delivered pursuant to subsections (a), (b) and (d) of
this Section 5.01 shall be deemed to have been delivered on the date on which
the Company posts such reports on the Company's website on the Internet at
▇▇▇.▇▇▇.▇▇▇ or when such report is posted on the SEC's website at ▇▇▇.▇▇▇.▇▇▇;
PROVIDED that the Company shall deliver paper copies of the reports referred to
in subsection (a), (b) and (d) of this Section 5.01 to the Administrative Agent
or any Lender who requests the Company to deliver such paper copies until
written notice to cease delivering paper copies is given by the Administrative
Agent or such Lender. Notices required to be delivered pursuant to subsection
(e) of this Section 5.01 shall be deemed to have been delivered on the date on
which the Company posts such information on the Internet at the website
▇▇▇.▇▇▇.▇▇▇ or when the publication is first made available by means of ▇▇▇▇▇'▇
or S&P's (as the case may be) Internet subscription service. The Administrative
Agent shall promptly make available to each Lender a copy of the certificate to
be delivered pursuant to subsection (c) of this Section 5.01 by posting such
certificate on IntraLinks or by other similar means.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Company will
furnish to the Administrative Agent and each Lender prompt written notice (in
any case within 5 Business Days) of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Subsidiary that, if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect; and
(c) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Company
will, and will cause each other Borrower to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; PROVIDED that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. PAYMENT OF TAXES. The Company will, and will
cause each Material Subsidiary to, pay its Tax liabilities, that, if not paid,
could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES. The Company will, and
will cause each Material Subsidiary to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The
Company will keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. The Company will permit any representatives designated
by the Administrative Agent, or by any Lender through the Administrative Agent,
at reasonable times and upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers.
SECTION 5.07. COMPLIANCE WITH LAWS. The Company will, and will
cause each Material Subsidiary to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property
(including, but not limited to, ERISA and environmental laws), except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS. The proceeds of the Loans will
be used only for general corporate purposes. No part of the proceeds of any Loan
will be used, whether directly or indirectly, to purchase or carry Margin Stock
(as defined in Regulation U of the Board) or to refinance Indebtedness
originally incurred for such purpose, or in any manner or for any purpose that
will result in a violation of Regulation U or X of the Board.
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ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees and other amounts payable
hereunder have been paid in full, the Company and each other Borrower covenants
and agrees with the Lenders that:
SECTION 6.01. LIENS. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.01;
PROVIDED that (i) such Lien shall not apply to any other property or
asset of any of the Borrowers or any of their Subsidiaries and (ii)
such Lien shall secure only those obligations which it secures on the
date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
PROVIDED that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of any of the Company or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary,
as the case may be and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; PROVIDED that (i) such Liens
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (ii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital
assets and (iii) such security interests shall not apply to any other
property or assets of the Company or any Subsidiary;
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(e) Liens on securities deemed to exist under repurchase
agreements and reverse repurchase agreements entered into by the
Company and the Subsidiaries; and
(f) other Liens not expressly permitted by clauses (a) through
(d) above; PROVIDED that the sum of (i) the aggregate principal amount
of outstanding obligations secured by Liens permitted under this clause
(f) and (ii) the Attributable Debt permitted by Section 6.02(b) does
not at any time exceed 25% of Consolidated Net Worth.
SECTION 6.02. SALE AND LEASEBACK TRANSACTIONS. The Company will not, and will
not permit any of its Subsidiaries to, enter into any Sale and Leaseback
Transaction except:
(a) Sale and Leaseback Transactions to which the Borrower or
any Subsidiary is a party as of the date hereof; and
(b) other Sale and Leaseback Transactions; PROVIDED that the
sum of (i) the aggregate principal amount of outstanding obligations
secured by Liens permitted by Section 6.01(f) and (ii) the aggregate
Attributable Debt in respect of Sale and Leaseback Transactions
permitted by this clause (b) does not at any time exceed 25% of
Consolidated Net Worth.
SECTION 6.03. FUNDAMENTAL CHANGES. Neither the Company nor any
other Borrower will merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of transactions and
including by means of any merger or sale of capital stock or otherwise) all or
substantially all of its assets (whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing or would
result from such transaction, the Company or any Borrower may merge or
consolidate with any Person if (a) the Company or such Borrower, as the case may
be, is the surviving Person or (b) the surviving Person (i) is organized under
the laws of The United States of America or, in the case of a merger or
consolidation of a Borrower other than the Company, the jurisdiction of
organization of such Borrower, and (ii) assumes in writing all of the Company's
or such Borrower's obligations under this Agreement pursuant to documentation
reasonably satisfactory to the Administrative Agent, such satisfaction to be
based solely upon the validity and enforceability of the assumption contained in
such documentation.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
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(a) the Company or any other Borrower shall fail to pay any
principal of any Loan, or any amount due in respect of any B/A, when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Company or any other Borrower shall fail to pay any
interest on any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Borrower in or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall prove to
have been incorrect in any material respect when made or deemed made;
(d) the Company or any Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
5.03 (with respect to the Company's or such Borrower's existence) or
5.08 or in Article VI;
(e) the Company or any Borrower shall fail to observe or
perform any covenant, condition or agreement contained in this
Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent or any Lender
to the Company;
(f) the Company or any Subsidiary shall default in the payment
of any Material Indebtedness when and as due, or any event or condition
shall occur that results in any Material Indebtedness becoming due
prior to its scheduled maturity; PROVIDED, that if the maturity of any
Material Indebtedness of a Person acquired directly or indirectly by
the Company after the date hereof shall be accelerated by reason of
such acquisition, no Event of Default under this paragraph (f) shall be
deemed to have occurred with respect to such Material Indebtedness so
long as such acceleration shall have been rescinded, or such Material
Indebtedness shall have been repaid, within five Business Days
following the date of such acceleration;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Material Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a
63
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (g) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing; or
(i) the Company or any Material Subsidiary shall become
unable, admit in writing its inability, or fail generally, to pay its
debts as they become due;
then, and in every such event (other than an event with respect to any Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding, and declare an amount equal to the full face
amount of all outstanding B/As, to be due and payable in whole (or in part, in
which case any principal or other amount not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal
of the Loans and an amount equal to the full face amount of all such outstanding
B/As so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers; and
in case of any event with respect to any of the Borrowers described in clause
(g) or (h) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding and an amount equal to the full face
amount of all outstanding B/As, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers. All
amounts due and payable under this Article VII in respect of outstanding B/As
shall be paid to the Canadian Agent and held in the Prepayment Account for
application as provided in Section 2.11(e).
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ARTICLE VIII
THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, the Persons named in the heading of this Agreement are hereby
appointed to act as Administrative Agent, London Agent and Canadian Agent on
behalf of the Lenders. Each of the Lenders and each assignee of any Lender
hereby irrevocably authorizes the Agents to take such actions on behalf of such
Lender or assignee and to exercise such powers as are delegated to the Agents by
the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent and, to the extent
expressly provided herein, the other Agents are hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, and by the Borrowers
with respect to clause (c) below, (a) to receive on behalf of the Lenders all
payments of principal of and interest on the Loans and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to the Company of any Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Company or
any other Borrower pursuant to this Agreement or the other Loan Documents as
received by the Administrative Agent.
With respect to the Loans made by it hereunder, each Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not an Agent,
and the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any of the Borrowers or any of
their Subsidiaries or other Affiliates thereof as if it were not an Agent.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) no Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that such Agent is required to exercise upon
receipt of notice in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose, and no Agent shall be
liable for the failure to disclose, any information relating to any of the
Borrowers or any of their Subsidiaries that is communicated to or obtained by
the institution serving as Agent or any of its Affiliates in any capacity. No
Agent shall be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or such other number or percentage of
65
the Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or willful misconduct. No
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by a Borrower (in which case such Agent
shall give written notice to each other Lender), and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to such Agent.
Each 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 believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for any
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.
Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, any Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right, with the consent of the Company, to appoint a successor. If no
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, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and
66
the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article and Section 10.03 shall continue in effect for the benefit of such
retiring 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 it was acting
as Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on the amount of its Loans and available
Commitments hereunder) of any expenses incurred for the benefit of the Lenders
by the Agents, including counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Company or any other Borrower and (b) to indemnify and hold
harmless each Agent and any of its Related Parties, on demand, in the amount of
such pro rata share, from and against any and all liabilities, taxes,
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 it in its capacity as Agent or any of them
in any way relating to or arising out of this Agreement or any other Loan
Document or action taken or omitted by it or any of them under this Agreement or
any other Loan Document, to the extent the same shall not have been reimbursed
by the Company or any other Borrower; PROVIDED that no Lender shall be liable to
an Agent or any such other indemnified Person for any portion of such
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are determined to have resulted
from the gross negligence or willful misconduct of such Agent, and any of its
Related Parties or any of their respective directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender 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 action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
None of the Lenders identified on the facing page or signature
pages of this Agreement or elsewhere herein as a "co-syndication agent" shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such.
67
ARTICLE IX
GUARANTEE
In order to induce the Lenders to extend credit to the other
Borrowers hereunder, the Company hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment when
and as due of the Obligations of such other Borrowers. The Company further
agrees that the due and punctual payment of such Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee hereunder notwithstanding any such
extension or renewal of any such Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrower of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the failure of
any Agent or Lender to assert any claim or demand or to enforce any right or
remedy against any Borrower under the provisions of this Agreement, any other
Loan Document or otherwise; (b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment or modification of, or
release from, any of the terms or provisions of this Agreement, or any other
Loan Document or agreement; (d) any default, failure or delay, willful or
otherwise, in the performance of any of the Obligations; or (e) any other act,
omission or delay to do any other act which may or might in any manner or to any
extent vary the risk of the Company or otherwise operate as a discharge of a
guarantor as a matter of law or equity or which would impair or eliminate any
right of the Company to subrogation.
The Company further agrees that its agreement hereunder
constitutes a guarantee of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Agent or Lender to
any balance of any deposit account or credit on the books of any Agent or Lender
in favor of any Borrower or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any impossibility in the performance
of any of the Obligations or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Agent or Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.
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In furtherance of the foregoing and not in limitation of any
other right which any Agent or Lender may have at law or in equity against the
Company by virtue hereof, upon the failure of any other Borrower to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by any Agent or Lender,
forthwith pay, or cause to be paid, to the applicable Agent or Lender in cash an
amount equal to the unpaid principal amount of such Obligations then due,
together with accrued and unpaid interest thereon. The Company further agrees
that if payment in respect of any Obligation shall be due in a currency other
than US Dollars and/or at a place of payment other than New York and if, by
reason of any Change in Law, disruption of currency or foreign exchange markets,
war or civil disturbance or other event, payment of such Obligation in such
currency or at such place of payment shall be impossible or, in the reasonable
judgment of any Agent or Lender, not consistent with the protection of its
rights or interests, then, at the election of the Administrative Agent, the
Company shall make payment of such Obligation in US Dollars (based upon the
applicable Exchange Rate in effect on the date of payment) and/or in New York,
and shall indemnify each Agent and Lender against any losses or reasonable
out-of-pocket expenses that it shall sustain as a result of such alternative
payment.
Upon payment by the Company of any sums as provided above, all
rights of the Company against any Borrower arising as a result thereof by way of
right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Obligations owed by such Borrower to the Agents and the Lenders.
Nothing shall discharge or satisfy the liability of the
Company hereunder except the full performance and payment of the Obligations.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES. Except in the case of notices and other communications
expressly permitted to be given by telephone, 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 telecopy, as follows:
(a) if to any Borrower, to Automatic Data Processing, Inc.,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of
Treasurer (Telecopy No. 973-974-3320), with a copy to Automatic Data
Processing, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of General Counsel (Telecopy No. 973-974-3324);
69
(b) if to the Administrative Agent, to JPMorgan Chase Bank,
Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Telecopy No. 713-750-2878), with
a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. 212-270-4584);
(c) if to the London Agent, to it at ▇.▇. ▇▇▇▇▇▇ Europe
Limited, Loans Agency Division, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. 44-20-7-777-2360); with a copy to the
Administrative Agent as provided in paragraph (b) above;
(d) if to the Canadian Agent, to it at JPMorgan Chase Bank,
Toronto Branch, Portfolio Management Associates, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇); with a
copy to the Administrative Agent as provided in paragraph (b) above;
and
(e) if to any Lender or Swingline Lender, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto or in the case of
a Lender, to the Administrative Agent and the Borrowers. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
any Agent or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or acceptance and purchase of a B/A shall not be
construed as a waiver of any Default, regardless of whether any Agent or any
Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Administrative Agent with the consent
of the
70
Required Lenders (and, additionally, in each case, if their rights and
obligations are affected thereby, the Swingline Lenders) or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Borrowers that are parties thereto, in
each case with the consent of the Required Lenders; PROVIDED that no such
agreement shall (i) increase any Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or the
amount payable in respect of any B/A, reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
adversely affected thereby, (iii) postpone the date of any scheduled payment of
the principal amount of any Loan, or any interest thereon, the required date of
any payment with respect to any B/A, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender (it being understood that the addition of new tranches of
loans or commitments that may be extended under this Agreement shall not be
deemed to alter such pro rata sharing of payments), (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be) (except, in each case, to provide for new tranches of loans or
commitments that may be extended under this Agreement), (vi) release the Company
from, or limit or condition, its obligations under Article IX, without the
written consent of each Lender, or (vii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders with Commitments of any Class (or holding Obligations
arising under such Commitments) differently than those of Lenders with
Commitments of any other Class (or holding Obligations arising under such
Commitments) without the written consent of Lenders holding a majority in
interest of the outstanding Loans, obligations in respect of B/As and unused
Commitments of each adversely affected Class; PROVIDED FURTHER that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of any
Agent or Swingline Lender hereunder or under any other Loan Document without the
prior written consent of such Agent or Swingline Lender and (B) any waiver,
amendment or modification of this Agreement that by its terms affects the rights
or duties under this Agreement of the US Tranche Lenders (but not the Euro
Tranche Lenders or the Canadian Tranche Lenders), the Euro Tranche Lenders (but
not the Canadian Tranche Lenders or the US Tranche Lenders), or the Canadian
Tranche Lenders (but not the US Tranche Lenders or the Euro Tranche Lenders) may
be effected by an agreement or agreements in writing entered into by the Company
and requisite percentage in interest of the affected Class of Lenders.
Notwithstanding anything else in the Section to the contrary, any amendment of
the definition of Applicable Rate pursuant to the final sentence of that
definition in Section 1.01 of this Agreement shall not require the written
71
consent of the each Lender affected thereby, but shall require the written
consent of the Company and the Required Lenders.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents and such Affiliates, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by any
Agent or any Lender, including the reasonable fees, charges and disbursements of
any counsel for any Agent or any Lender, in connection with the enforcement or
protection of its rights under any Loan Document, including its rights under
this Section, or in connection with the Loans made or the B/As accepted and
purchased, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) The Company shall indemnify each Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, liabilities, out-of-pocket costs or expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) any transaction or proposed transaction (whether or
not consummated) in which any proceeds of any Borrowing or purchase of B/As
hereunder are applied or proposed to be applied, directly or indirectly, by any
of the Borrowers or their Subsidiaries, (ii) any Loan or B/A Drawing or the use
of the proceeds therefrom or (iii) the execution, delivery or performance by any
of the Borrowers and their Subsidiaries of the Loan Documents, or any actions or
omissions of a Borrower or any of its Subsidiaries in connection therewith;
PROVIDED that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, liabilities, costs or expenses shall have resulted
from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to any Agent or any Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to such Agent or
Swingline Lender such Lender's pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; PROVIDED that the unreimbursed loss, liability, cost or expense,
as the case may be, was incurred by or asserted against such Agent or Swingline
Lender in its capacity as such. For purposes hereof, a Lender's "pro rata share"
shall be determined based upon its share of the sum (without duplication) of the
total Exposures (including B/As) and unused Commitments at the time.
72
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable within
15 Business Days after receipt by the Company of a reasonably detailed invoice
therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
neither the Company nor any Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by any Borrower without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans or other amounts at the time owing to
it); PROVIDED that (i) (A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender, the Company (so long as
no Event of Default has occurred and has been continuing for 30 days) and (B)
the Administrative Agent must give their prior written consent to such
assignment (which consents referred to in (A) and (B) shall not be unreasonably
withheld or delayed), (ii) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitments and outstanding
Loans, the US Dollar Equivalent of the Commitments and outstanding Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than US$10,000,000 unless each of the
Company and the Administrative Agent otherwise consent, (iii) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
US$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; and provided further
that any consent of the Company otherwise required under this paragraph shall
not be required if an Event of Default referred to in clause (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance
73
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.17 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and amounts in respect of B/As owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Company and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been made in compliance with this Agreement as provided in this
paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent or any Swingline Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this 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 Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
74
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this 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 clause (i), (ii), (iii) or
(vi) of the first proviso to Section 10.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 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 so provides and is made
with the Company's prior written consent. A Participant shall not be entitled to
the benefits of Section 2.17 unless the Company is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank or, in the case of a Lender that is an
investment fund, to the trustee under the indenture to which such fund is a
party, and this Section shall not apply to any such pledge or assignment of a
security interest; PROVIDED that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrowers herein or in any other Loan
Document or in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto or thereto and
shall survive the execution and delivery of this Agreement and any other Loan
Document and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that any Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17, 10.03 and 10.12 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans and the Commitments or
75
the termination of this Agreement or any other Loan Document or any provision
hereof or thereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, 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 and in whatever currency denominated) at
any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of any Borrower against any of and
all the obligations of such Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 10.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. 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.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
77
SECTION 10.12. CONFIDENTIALITY. Each Agent and each Lender
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors, to Related Funds' directors and officers and to any direct
or indirect contractual counterparty in swap agreements (it being understood
that each Person to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) to the
extent required or advisable in the judgment of counsel in connection with any
suit, action or proceeding relating to the enforcement of rights of the Agents
or the Lenders against the Borrowers under this Agreement or any other Loan
Document, (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 or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section of which such Agent or Lender is aware or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company other than as a result of a breach of this Section of
which such Agent or Lender is aware. For the purposes of this Section,
"Information" means all information received from the Company relating to the
Company or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Company other than as a result of a breach of this Section of
which such Agent or Lender is aware. Any Person required to maintain the
confidentiality of 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 Information as such
Person would accord to its own confidential information.
SECTION 10.13. CONVERSION OF CURRENCIES. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement
78
Currency"), be discharged only to the extent that, on the Business Day following
receipt by the Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 10.13 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
SECTION 10.14. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan or any B/A Drawing under applicable law (collectively the
"Charges"), shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may
be contracted for, charged, taken, received or reserved by the Lender holding
such Loan or accepting such B/A in accordance with applicable law, the rate of
interest payable in respect of such Loan or B/A Drawing hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan or B/A Drawing but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or B/A Drawings shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon (a) at the Federal Funds Effective Rate in the
case of US Dollar denominated amounts, (b) at the Canadian Base Rate in the case
of Canadian dollar denominated amounts, to the date of repayment, or (c) at a
rate determined by the Administrative Agent to represent the applicable Lenders'
cost of funds in the case of Euro denominated amounts, shall have been received
by such Lender.
SECTION 10.15. USA PATRIOT ACT. Each Lender hereby notifies
each Borrower that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "ACT"), it is
required to obtain, verify and record information that identifies such Borrower,
which information includes the name and address of such Borrower and other
information that will allow such Lender to identify such Borrower in accordance
with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
AUTOMATIC DATA PROCESSING, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Corporate VP and Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative
Agent and Swingline Lender,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED,
as London Agent,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
JPMORGAN CHASE BANK, TORONTO BRANCH,
as Canadian Agent,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO THE
AUTOMATIC DATA PROCESSING, INC.
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF JUNE 30, 2004
Name of Institution:
ABN AMRO BANK N.V.
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇
Title: Senior Vice President
by(1) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Name of Institution:
BANCA DI ROMA - NEW YORK BRANCH
by /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
by(1) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
----------
(1) The second signature block is for the use of those Lenders that require two
signatures.
Name of Institution:
BANK OF AMERICA, N.A.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Name of Institution:
BANK OF MONTREAL
by /s/ Ben Ciabella
-------------------------------
Name: Ben Ciabella
Title: Vice President
by(1) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Name of Institution:
BARCLAYS BANK PLC
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
----------
(1) The second signature block is for the use of those Lenders that require two
signatures.
Name of Institution:
BNP PARIBAS
by /s/ ▇▇▇▇▇▇ d'Humieres
-------------------------------
Name: ▇▇▇▇▇▇ d'Humieres
Title: Vice President
by(1) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
Name of Institution:
CITICORP USA, INC.
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Name of Institution:
DEUTSCHE BANK AG - NEW YORK BRANCH
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
by(1) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
----------
(1) The second signature block is for the use of those Lenders that require two
signatures.
Name of Institution:
HSBC BANK USA
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution:
ING LUXEMBOURG SA
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Head of Corporate and
Institutional Banking
by(1) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager Corporate and
Institutional Banking
Name of Institution:
KEYBANK NATIONAL ASSOCIATION
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
----------
(1) The second signature block is for the use of those Lenders that require two
signatures.
Name of Institution:
THE NORTHERN TRUST COMPANY
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Name of Institution:
PNC BANK, NATIONAL ASSOCIATION
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Name of Institution:
ROYAL BANK OF CANADA
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Name of Institution:
SANPAOLO IMI S.p.A.
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: C.E.O. for the Americas
by(1) /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Name of Institution:
SOCIETE GENERALE
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
Name of Institution:
SUN TRUST BANK
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
----------
(1) The second signature block is for the use of those Lenders that require two
signatures.
Name of Institution:
UNION BANK OF CALIFORNIA, N.A.
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Assistant Vice President
Name of Institution:
U.S. BANK NATIONAL ASSOCIATION
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution:
WACHOVIA BANK, NATIONAL ASSOCIATION
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Name of Institution:
▇▇▇▇▇ FARGO BANK,N.A.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President