EXHIBIT 10.1
U.S. $500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of May 11, 2005
Among
JABIL CIRCUIT, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP USA, INC.
as Administrative Agent
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
THE ROYAL BANK OF SCOTLAND PLC,
SUNTRUST BANK,
and
ABN AMRO BANK N.V.
as Documentation Agents
--------------------------------------------------------------------------------
CITIGROUP GLOBAL MARKETS INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 12
SECTION 1.03. Accounting Terms 13
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 13
SECTION 2.02. Making the Advances 13
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 15
SECTION 2.04. Fees 17
SECTION 2.05. Termination or Reduction of the Commitments 17
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings 17
SECTION 2.07. Interest on Revolving Credit Advances 18
SECTION 2.08. Interest Rate Determination 19
SECTION 2.09. Optional Conversion of Revolving Credit Advances 20
SECTION 2.10. Prepayments of Advances 20
SECTION 2.11. Increased Costs 21
SECTION 2.12. Illegality 22
SECTION 2.13. Payments and Computations 22
SECTION 2.14. Taxes 23
SECTION 2.15. Sharing of Payments, Etc. 25
SECTION 2.16. Evidence of Debt 25
SECTION 2.17. Use of Proceeds 25
SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments 26
ARTICLE III
i
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 27
SECTION 3.02. Initial Advance to Each Designated Subsidiary 28
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and Commitment Increase 29
SECTION 3.04. Determinations Under Section 3.01 29
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 30
ARTICLE V
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 33
SECTION 5.03. Financial Covenants 36
ARTICLE VI
SECTION 6.01. Events of Default 36
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 38
ARTICLE VII
SECTION 7.01. Unconditional Guaranty 38
SECTION 7.02. Guaranty Absolute 39
SECTION 7.03. Waivers and Acknowledgments 39
SECTION 7.04. Subrogation 40
SECTION 7.05. Continuing Guaranty; Assignments 40
ARTICLE VIII
SECTION 8.01. Authorization and Action 41
SECTION 8.02. Agent's Reliance, Etc. 41
SECTION 8.03. Citibank and Affiliates 41
SECTION 8.04. Lender Credit Decision 42
SECTION 8.05. Indemnification 42
ii
SECTION 8.06. Successor Agent 42
SECTION 8.07. Sub-Agent 43
SECTION 8.08. Other Agents 43
ARTICLE IX
SECTION 9.01. Amendments, Etc. 43
SECTION 9.02. Notices, Etc. 43
SECTION 9.03. No Waiver; Remedies 44
SECTION 9.04. Costs and Expenses 44
SECTION 9.05. Right of Set-off 45
SECTION 9.06. Binding Effect 45
SECTION 9.07. Assignments and Participations 45
SECTION 9.08. Confidentiality 47
SECTION 9.09. Designated Subsidiaries 48
SECTION 9.10. Governing Law 48
SECTION 9.11. Execution in Counterparts 48
SECTION 9.12. Judgment 48
SECTION 9.13. Jurisdiction, Etc. 49
SECTION 9.14. Substitution of Currency 49
SECTION 9.15. No Liability of the Issuing Banks 49
SECTION 9.16. Patriot Act Notice 50
SECTION 9.17. Power of Attorney 50
SECTION 9.18. Waiver of Jury Trial 51
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Designation Agreement
iv
FIVE YEAR CREDIT AGREEMENT
Dated as of May 11, 2005
JABIL CIRCUIT, INC., a Delaware corporation (the "Company"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") and issuers of letters of credit ("Initial Issuing Banks") listed on
Schedule I hereto, JPMORGAN CHASE BANK, N.A., as syndication agent, and CITICORP
USA, INC. ("Citibank"), as administrative agent (the "Agent") for the Lenders
(as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Swing Line Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No.
▇▇▇▇▇▇▇▇, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Committed Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and
the Lenders for such purpose and (c) in any such case, such other account
of the Agent as is designated in writing from time to time by the Agent to
the Company and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇ Base Rate Advances Eurocurrency Rate Advances
--------------------- --------------------- --------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 or above 0.00% 0.500%
Level 2
BBB or Baa2 0.00% 0.600%
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.00% 0.700%
▇▇▇▇▇ ▇
BB+ or Ba1 0.00% 0.875%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.00% 0.950%
1
"Applicable Percentage" means, as of any date a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
--------------------- ----------
Level 1
BBB+ or Baa1 or above 0.125%
▇▇▇▇▇ ▇
BBB or Baa2 0.150%
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.175%
▇▇▇▇▇ ▇
BB+ or Ba1 0.250%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.300%
"Applicable Utilization Fee" means, as of any date that the sum of
the aggregate Advances and the Available Amount of Letters of Credit
exceed 50% of the aggregate Commitments, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
--------------------- ---------------
Level 1
BBB+ or Baa1 or above 0.125%
▇▇▇▇▇ ▇
BBB or Baa2 0.125%
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.125%
▇▇▇▇▇ ▇
BB+ or Ba1 0.125%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250%
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any law or proceeding of the type referred to
in Section 6.01(e) or Title 11, U.S. Code, or any similar foreign,
federal, state or provincial law for the relief of debtors.
2
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance denominated in Dollars that
bears interest as provided in Section 2.07(a)(i).
"Borrowers" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of the currency of
such Eurocurrency Rate Advance (or, in the case of an Advance denominated
in Euro, on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open).
"Commitment" means a Revolving Credit Commitment or a Swing Line
Commitment.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section 2.18(a).
"Committed Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of Japan and Euros.
"Company Information" has the meaning specified in Section 9.08.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's
business and monetary obligations arising under supply or consignment
agreements, in each case not overdue by more than 90 days or are being
contested in good faith by appropriate proceedings and for which
reasonable reserves are being maintained), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit, bank guarantees, surety bonds or similar extensions of credit,
(g) the Net ▇▇▇▇-to-Market Exposure of such Person in respect of Hedge
Agreements, (h) all Invested Amounts, (i) all liability under any
synthetic lease or tax ownership operating lease, (j) all Debt of others
referred to in clauses (a) through (i) above or clause (k) below and other
payment obligations (collectively, "Guaranteed Debt") guaranteed directly
or indirectly in any manner by such Person, or in
3
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Guaranteed Debt or to advance or
supply funds for the payment or purchase of such Guaranteed Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Guaranteed Debt or to assure the holder of such Guaranteed
Debt against loss, (3) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (k) all
Debt referred to in clauses (a) through (j) above (including Guaranteed
Debt) secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) to the extent included in net
income, non-cash, non-recurring charges and (f) to the extent included in
net income, non-cash, recurring charges related to equity compensation, in
each case determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) any other financial institution approved by the Agent, each
Issuing Bank and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 9.07, the Company, such approvals not to be unreasonably withheld
or delayed; and (iv) any other Person approved by the Agent, each Issuing
Bank and the Company, such approvals not to be unreasonably withheld or
delayed; provided, however, that neither the Company nor an Affiliate of
the Company shall qualify as an Eligible Assignee.
"Environmental Action" means (a) any notice of non-compliance or
violation, notice of liability or potential liability, proceeding, consent
order or consent agreement by any governmental or regulatory authority
with jurisdiction or (b) any litigation, case, suit, demand, demand letter
or claim by any governmental or regulatory authority or any third party
relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials, including, without limitation, (x) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (y) by any governmental
or regulatory authority or any such third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
4
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials, to the extent applicable to the operations of the
Company or any of its Subsidiaries.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law for the operations of the Company or any of its Subsidiaries.
"Equivalent" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement, and the "Equivalent" in any Committed Currency of Dollars means
the equivalent in such Committed Currency of Dollars determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange such Committed Currency for Dollars in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Company or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Company or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Revolving Credit Borrowing, the
rate appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Agent from time to time for purposes of providing quotations of interest
rates applicable to deposits in Euro by reference to the Banking
Federation of the European Union Settlement Rates for deposits in Euro) at
approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in Euro
with a maturity comparable to such
5
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising part
of such Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however,
to the provisions of Section 2.08).
"Euro" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation. "Eurocurrency Lending Office" means, with
respect to any Lender, the office of such Lender specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto or in
the Assumption Agreement or the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a)(i) in the case of any Revolving Credit Advance denominated
in Dollars or any Committed Currency other than Euro, the rate per annum
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum)
appearing on Moneyline Telerate Markets Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole multiple
of 1/100 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars or the applicable Committed
Currency is offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period or, (ii) in the case of any Revolving Credit
Advance denominated in Euros, the EURIBO Rate by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Moneyline Telerate Markets Page 3750 (or any successor
page) is unavailable, the Eurocurrency Rate for any Interest Period for
each Eurocurrency Rate Advance comprising part of the same Revolving
Credit Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for
all Eurocurrency Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
6
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Debt" has the meaning specified in Section 5.02(d)(ii).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic under any Environmental Law, located on or
under or emanating from real property owned or operated by the Company or
any of its Subsidiaries.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section 2.18(b).
"Information Memorandum" means the information memorandum dated
March 29, 2005 issued by the Agent in connection with the syndication of
the Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurocurrency Rate
Advance and ending on the last day of the period selected by the Borrower
requesting such Borrowing pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as the applicable Borrower may, upon notice received by the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however,
that:
(a) the Borrowers may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing shall be of the same duration;
7
(c) in the case of any such Revolving Credit Borrowing, the
Borrowers shall not be entitled to select an Interest Period having
duration of nine or twelve months unless, by 2:00 P.M. (New York
City time) on the third Business Day prior to the first day of such
Interest Period, each Lender notifies the Agent that such Lender
will be providing funding for such Revolving Credit Borrowing with
such Interest Period (the failure of any Lender to so respond by
such time being deemed for all purposes of this Agreement as an
objection by such Lender to the requested duration of such Interest
Period); provided that, if any or all of the Lenders object to the
requested duration of such Interest Period, the duration of the
Interest Period for such Revolving Credit Borrowing shall be one,
two, three or six months, as specified by the Borrower requesting
such Revolving Credit Borrowing in the applicable Notice of
Revolving Credit Borrowing as the desired alternative to an Interest
Period of nine or twelve months;
(d) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Invested Amounts" means the amounts invested by investors that are
not Affiliates of the Company in connection with any receivables
securitization program and paid to the Company or its Subsidiaries, as
reduced by the aggregate amounts received by such investors from the
payment of receivables and applied to reduce such invested amounts.
"issuance" with respect to any Letter of Credit means the issuance,
amendment, renewal or extension of such Letter of Credit.
"Issuing Bank" means an Initial Issuing Bank or any other Lender
that expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank.
"L/C Cash Deposit Account" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the
Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent and the Issuing Banks.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means each Initial Lender, each Issuing Bank, each
Assuming Lender that shall become a party hereto pursuant to Section 2.18
and each Person that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
8
"Letter of Credit Facility" means, at any time, an amount equal to
the lesser of (a) $150,000,000 and (b) the aggregate amount of the
Revolving Credit Commitments.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Material Adverse Change" means any material adverse change in the
business, financial condition or operations of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means (a) a material adverse effect on the
business, financial condition or operations of the Company and its
Subsidiaries taken as a whole, (b) a material impairment of the ability of
the Agent or any Lender to enforce or collect any obligations of any
Borrower under this Agreement or any Note or (c) a material impairment of
the ability of any Borrower to perform its obligations under this
Agreement or any other Loan Document.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Morean Group" means (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, his spouse, and any of
his parents and lineal descendants, their spouses and the children of any
such spouses born of a prior union, and their lineal descendants, and the
estates, executors and administrators of any of such Persons, (b) any
trustee under any inter vivos or testamentary trust for the benefit of any
of the Persons specified in clause (a) or the beneficiaries thereunder,
and (c) any corporation, partnership, limited liability company, trust or
other entity in which the Persons referred to in clauses (a) or (b) in the
aggregate have either a direct or indirect beneficial interest or voting
control of greater than 50%.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect
of which the Company or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net ▇▇▇▇-to-Market Exposure" means, as of any date of
determination, the excess (if any) of all unrealized losses over all
unrealized profits of the Person in question arising from Hedge
Agreements. "Unrealized losses" means the fair market value of the cost to
such Person of replacing such Hedge Agreement as of the date of
determination (assuming the Hedge Agreement were to be terminated as of
that date) and "unrealized profits" means the fair market value of the
gain to such Person of replacing such Hedge Agreement as of the date of
determination (assuming such Hedge Agreement were to be terminated as of
that date).
"Note" means a promissory note of any Borrower payable to the order
of any Lender, delivered pursuant to a request made under Section 2.16, in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances
made by such Lender to such Borrower.
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
9
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.
"Payment Office" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law (and ordinary course of business
contractual Liens in respect of such Liens), such as materialmen's,
mechanics', carriers', workmen's, repairmen's and landlord's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 90 days or are
being contested in good faith by appropriate proceedings and for which
reasonable reserves are being maintained; (c) pledges or deposits to
directly or indirectly secure obligations under workers' compensation
laws, unemployment insurance laws or similar legislation or to directly or
indirectly secure public or statutory obligations, including obligations
to governmental entities in respect of value added taxes, duties, customs,
excise taxes, franchises, licenses, rents and the like, or surety, customs
or appeal bonds; (d) good faith deposits (or security for obligations in
lieu of good faith deposits) to directly or indirectly secure bids,
tenders, contracts or leases for a purpose other than borrowing money or
obtaining credit, including rent or equipment lease security deposits, (e)
easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable
or materially adversely affect the use of such property for its present
purposes, (f) contractual rights of setoff against (which may include
grants of Liens) or contractual Liens on, accounts or other property in
transit to or in the possession of or maintained by the lienor, in the
absence of any agreement to maintain a balance or deliver property against
which such right may be exercised, and contractual rights of set-off
against claims against the lienor and (g) Liens pursuant to supply or
consignment contracts or otherwise for the receipt of goods or services,
encumbering only the goods covered thereby, where the contracts are not
overdue by more than 90 days or are being contested in good faith by
appropriate proceedings and for which reasonable reserves are being
maintained.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Company or, if no such Debt of the Company is then outstanding, the
corporate credit rating most recently announced by either S&P or Moody's,
as the case may be, provided, if any such rating agency shall have issued
more than one such rating, the lowest such rating issued by such rating
agency. For purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be
determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee will be set
in accordance with Level 5 under the definition of "Applicable Margin",
"Applicable Percentage" or "Applicable Utilization Fee", as the case may
be; (c) if the ratings established by S&P and
10
Moody's shall fall within different levels, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be based
upon the higher rating unless the such ratings differ by two or more
levels, in which case the applicable level will be deemed to be one level
above the lower of such levels; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating agency making
such change; and (e) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Ratable Share" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at such
time (or, if the Revolving Credit Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Revolving Credit
Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit
Commitments at such time (or, if the Revolving Credit Commitments shall
have been terminated pursuant to Section 2.05 or 6.01, the aggregate
amount of all Revolving Credit Commitments as in effect immediately prior
to such termination).
"Reference Banks" means Citibank, JPMorgan Chase Bank, N.A. and ABN
AMRO Bank N.V.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount (based
on the Equivalent in Dollars at such time) of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Revolving Credit Commitments.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01(a).
"Revolving Credit Borrowing Minimum" means, in respect of Revolving
Credit Advances denominated in Dollars, $10,000,000, in respect of
Revolving Credit Advances denominated in Sterling, (pound)10,000,000, in
respect of Revolving Credit Advances denominated in Yen, (Y)1,000,000,000
and, in respect of Revolving Credit Advances denominated in Euros,
(euro)10,000,000.
"Revolving Credit Borrowing Multiple" means, in respect of Revolving
Credit Advances denominated in Dollars, $1,000,000 in respect of Revolving
Credit Advances denominated in Sterling, (pound)1,000,000, in respect of
Revolving Credit Advances denominated in Yen, (Y)100,000,000 and, in
respect of Revolving Credit Advances denominated in Euros,
(euro)1,000,000.
"Revolving Credit Commitment" means as to any Lender (a) the Dollar
amount set forth opposite such Lender's name on Schedule I hereto as such
Lender's "Revolving Credit Commitment", (b) if such Lender has become a
Lender hereunder pursuant to an Assumption Agreement, the Dollar amount
set forth in such Assumption Agreement or (c) if such Lender has entered
into an Assignment and Acceptance, the Dollar amount set forth for such
Lender in the Register maintained by the Agent pursuant to Section
9.07(d), as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.18.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
11
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and no Person other than the Company and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Swing Line Advance" means an advance made by any Swing Line Bank
pursuant to Section 2.01(c) or any Lender pursuant to Section 2.02(b).
"Swing Line Bank" means each of Citibank and JPMorgan Chase Bank,
N.A.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by any Swing Line Bank.
"Swing Line Commitment" means with respect to any Swing Line Bank at
any time the amount set forth opposite such Swing Line Bank's name on
Schedule I hereto, as such amount may be reduced pursuant to Section 2.05.
"Swing Line Facility" means, at any time, an amount equal to the
least of (a) the aggregate amount of the Swing Line Banks' Swing Line
Commitments at such time, (b) $50,000,000 and (c) the aggregate amount of
the Revolving Credit Commitments.
"Termination Date" means the earlier of May 11, 2010 and the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
"Unused Commitment" means, with respect to each Lender at any time,
(a) such Lender's Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Ratable Share of (A) the aggregate Available Amount of
all the Letters of Credit outstanding at such time, (B) the aggregate
principal amount of all Advances outstanding at such time made by each
Issuing Bank pursuant to Section 2.03(c) that have not been funded by such
Lender and (C) the aggregate principal amount of all Swing Line Advances
then outstanding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right to so vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
12
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e), as
modified by the adoption of Financial Accounting Standards 123R related to
equity compensation ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The Revolving
Credit Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to any Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an amount (based in respect of any Revolving Credit
Advances to be denominated in a Committed Currency by reference to the
Equivalent thereof in Dollars determined on the date of delivery of the
applicable Notice of Revolving Credit Borrowing) not to exceed such Lender's
Unused Commitment. Each Revolving Credit Borrowing shall be in an amount not
less than the Revolving Credit Borrowing Minimum or the Revolving Credit
Borrowing Multiple in excess thereof and shall consist of Revolving Credit
Advances of the same Type and in the same currency made on the same day by the
Lenders ratably according to their respective Revolving Credit Commitments.
Within the limits of each Lender's Revolving Credit Commitment, any Borrower may
borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow
under this Section 2.01(a).
(b) Letters of Credit. Any Borrower may request any Issuing Bank to
issue, and such Issuing Bank may, if in its reasonable discretion it elects to
do so, on the terms and conditions hereinafter set forth and in reliance upon
the agreements of the other Lenders set forth in this Agreement, to issue
letters of credit (each, a "Letter of Credit") denominated in Dollars for the
account of any Borrower or its specified Subsidiaries from time to time on any
Business Day during the period from the Effective Date until 30 days before the
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
not to exceed at any time the Letter of Credit Facility at such time and (ii)
for each such Letter of Credit not to exceed an amount equal to the Unused
Commitments of the Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the applicable Borrower or the
beneficiary to require renewal) later than the earlier of one year after the
issuance thereof (or one year after its renewal or extension) and 10 Business
Days before the Termination Date. Within the limits referred to above, the
Borrowers may from time to time request the issuance of Letters of Credit under
this Section 2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be
deemed to constitute a Letter of Credit issued hereunder, and each Lender that
is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be
deemed to be an Issuing Bank for each such letter of credit, provided than any
renewal or replacement of any such letter of credit on or after the date hereof
shall be re-issued by an Issuing Bank pursuant to the terms of this Agreement.
(c) The Swing Line Advances. Each Swing Line Bank severally agrees,
on the terms and conditions hereinafter set forth, to make Swing Line Advances
denominated in Dollars to any Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding the Swing Line Facility
and (ii) in an amount for each such Advance not to exceed the Unused Commitments
of the Lenders on such Business Day. No Swing Line Advance shall be used for the
purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of a Base Rate
Advance. Within the limits of the Swing Line Facility and within the limits
referred to in clause (ii) above, the Borrowers may borrow under this Section
2.01(c), prepay pursuant to Section 2.10 and reborrow under this Section
2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Section 2.02(b) or Section 2.03(c), each Revolving Credit Borrowing shall be
made on notice, given not later than (x) 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances denominated in Dollars, (y) 4:00 P.M. (London time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing in the
case of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances
denominated in any Committed Currency, or (z) 11:00 A.M. (New York City time) on
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to the Agent
(and, in the
13
case of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier. Each such notice of a Revolving Credit Borrowing (a
"Notice of Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the case
of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period and currency for each such Revolving Credit Advance.
Each Lender shall, before 1:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, make available for the account of its Applicable Lending
Office to the Agent at the applicable Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
requesting the Revolving Credit Borrowing at the account specified in the wiring
instructions in the applicable Notice of Revolving Credit Borrowing or, if no
account is so specified, at the Agent's address referred to in Section 9.02;
provided, however, that, if such borrowing is denominated in Dollars, the Agent
shall first make a portion of such funds equal to the aggregate principal amount
of any Swing Line Advances made by the Swing Line Banks and by any other Lender
and outstanding on the date of such Revolving Credit Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to the Swing Line
Banks and such other Lenders for repayment of such Swing Line Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 3:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing by the Borrower to each Swing Line Bank and the Agent, of which the
Agent shall give prompt notice to the Lenders. Each such notice of a Swing Line
Borrowing (a "Notice of Swing Line Borrowing") shall be by telephone, confirmed
at once in writing, or telecopier or telex, specifying therein the requested (i)
date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the tenth Business Day after
the requested date of such Borrowing). Each Swing Line Bank shall, before 5:00
P.M. (New York City time) on the date of such Swing Line Borrowing, unless any
Lender gives prior notice to such Swing Line Bank or the Agent that the
applicable conditions of Article III would not be satisfied at the time of such
Swing Line Borrowing, make such Swing Line Bank's ratable portion of such Swing
Line Borrowing available (based on the respective Swing Line Commitments of the
Swing Line Banks) to the Agent at the Agent's Account, in same day funds. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower requesting the Swing Line Borrowing at the account specified in the
wiring instructions in the applicable Notice of Swing Line Borrowing or, if no
account is so specified, at the Agent's address referred to in Section 9.02.
Upon written demand by any Swing Line Bank with a Swing Line Advance, with a
copy of such demand to the Agent, such Swing Line Bank shall sell and assign to
each such other Lender and each other Lender will purchase from such Swing Line
Bank, such other Lender's Pro Rata Share of such outstanding Swing Line Advance,
by making available for the account of its Applicable Lending Office to the
Agent for the account of such Swing Line Bank, by deposit to the Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by such Lender. The
Borrower hereby agrees to each such sale and assignment. Each Lender agrees to
purchase its Pro Rata Share of an outstanding Swing Line Advance on (i) the
Business Day on which demand therefor is made by the Swing Line Bank which made
such Advance, provided that notice of such demand is given not later than 11:00
A.M. (New York City time) on such Business Day or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such time.
Upon any such assignment by Swing Line Bank to any other Lender of a portion of
a Swing Line Advance, such Swing Line Bank represents and warrants to such other
Lender that such Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it and there are no adverse claims thereto, but makes
no other representation or warranty and assumes no responsibility with respect
to such Swing Line Advance, this Agreement, the Notes or the Borrower. If and to
the extent that any Lender shall not have so made the amount of such Swing Line
Advance available to the Agent, such Lender agrees to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
such Lender is required to have made such amount available to the Agent until
the date such amount is paid to the Agent, at the Federal Funds Rate. If such
Lender shall pay to the Agent such amount for the account of such Swing Line
Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Advance made by such Lender on such Business Day for
14
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Advance made by such Swing Line Bank shall be reduced by such amount on
such Business day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurocurrency Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than the Revolving Credit Borrowing Minimum or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurocurrency Rate
Advances may not be outstanding as part of more than six separate Revolving
Credit Borrowings.
(d) Each Notice of Revolving Credit Borrowing and Notice of Swing
Line Borrowing shall be irrevocable and binding on the Borrower requesting the
Borrowing. In the case of any Revolving Credit Borrowing that the related Notice
of Revolving Credit Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, such Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(e) Unless the Agent shall have received notice from a Lender or a
Swing Line Bank prior to the time of any Revolving Credit Borrowing or Swing
Line Borrowing, as the case may be, that such Lender or Swing Line Bank will not
make available to the Agent such Lender's or Swing Line Bank's ratable portion
of such Revolving Credit Borrowing or Swing Line Borrowing, as the case may be,
the Agent may assume that such Lender or Swing Line Bank has made such portion
available to the Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02, as applicable, and the Agent may, in
reliance upon such assumption, make available to the Borrower requesting the
Borrowing on such date a corresponding amount. If and to the extent that such
Lender or Swing Line Bank shall not have so made such ratable portion available
to the Agent, such Lender or Swing Line Bank and such Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at (i) in
the case of such Borrower, the higher of (A) the interest rate applicable at the
time to the Advances comprising such Borrowing and (B) the cost of funds
incurred by the Agent in respect of such amount and (ii) in the case of such
Lender or Swing Line Bank, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in respect
of such amount in the case of Advances denominated in Committed Currencies. If
such Lender or Swing Line Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's or Swing Line
Bank's Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender or Swing Line Bank to make the
Revolving Credit Advance or Swing Line Advance to be made by it as part of any
Borrowing shall not relieve any other Lender or Swing Line Bank of its
obligation, if any, hereunder to make its Revolving Credit Advance or Swing Line
Advance on the date of such Revolving Credit Borrowing or Swing Line Borrowing,
as the case may be, but no Lender or Swing Line Bank shall be responsible for
the failure of any other Lender or Swing Line Bank to make the Revolving Credit
Advance or Swing Line Advance to be made by such other Lender or Swing Line Bank
on the date of any Revolving Credit Borrowing or Swing Line Borrowing, as the
case may be.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
tenth Business Day prior to the date of the proposed Issuance of such Letter of
Credit (or on such shorter notice as the applicable Issuing Bank may agree), by
any Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof. Each such notice by a Borrower of Issuance of a Letter of
Credit (a "Notice of Issuance") shall be by telecopier or telephone, confirmed
immediately in writing, specifying therein the requested (A) date of such
Issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit (which shall not be later
than the earlier of (1) one year after the issuance thereof (or one year after
its renewal or extension) and (2) ten Business Days before the
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Termination Date), (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, such Letter of Credit shall be
issued pursuant to such application and agreement for letter of credit as such
Issuing Bank and the applicable Borrower shall agree for use in connection with
such requested Letter of Credit (a "Letter of Credit Agreement"). If the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its reasonable discretion (it being understood that any such form shall have
only explicit documentary conditions to draw and shall not include discretionary
conditions), such Issuing Bank will, if in its reasonable discretion it elects
to do so, and unless any Lender gives prior notice to such Issuing Bank or the
Agent that the applicable conditions of Article III would not be satisfied at
the time of such issuance, upon fulfillment of the applicable conditions set
forth in Section 3.03, make such Letter of Credit available to the applicable
Borrower at its office referred to in Section 9.02 or as otherwise agreed with
such Borrower in connection with such Issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Participations. By the Issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing or decreasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Ratable Share of the Available Amount of such Letter of Credit.
Each Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, in same day
funds, such Lender's Ratable Share of each drawing made under a Letter of Credit
funded by such Issuing Bank and not reimbursed by the applicable Borrower on the
date made, or of any reimbursement payment required to be refunded to such
Borrower for any reason, which amount will be advanced, and deemed to be a
Revolving Credit Advance to such Borrower hereunder, regardless of the
satisfaction of the conditions set forth in Section 3.03. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Revolving Credit
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender further acknowledges
and agrees that its participation in each Letter of Credit will be automatically
adjusted to reflect such Lender's Ratable Share of the Available Amount of such
Letter of Credit at each time such Lender's Revolving Credit Commitment is
amended pursuant to an assignment in accordance with Section 9.07 or otherwise
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit which is not reimbursed by the applicable
Borrower on the date made shall constitute for all purposes of this Agreement
the making by any such Issuing Bank of a Revolving Credit Advance, which shall
be a Base Rate Advance, in the amount of such draft, without regard to whether
the making of such an Advance would exceed such Issuing Bank's Unused
Commitment. Each Issuing Bank shall give prompt notice of each drawing under any
Letter of Credit issued by it to the applicable Borrower and the Agent. Upon
written demand by such Issuing Bank, with a copy of such demand to the Agent and
the applicable Borrower, each Lender shall pay to the Agent such Lender's
Ratable Share of such outstanding Revolving Credit Advance pursuant to Section
2.03(b). Each Lender acknowledges and agrees that its obligation to make
Revolving Credit Advances pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Promptly after receipt thereof, the Agent shall transfer such funds
to such Issuing Bank. Each Lender agrees to fund its Ratable Share of an
outstanding Revolving Credit Advance on (i) the Business Day on which demand
therefor is made by such Issuing Bank, provided that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day, or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. If and to the extent that any Lender shall not have so
made the amount of such Revolving Credit Advance available to the Agent, such
Lender agrees to pay to the Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by any such Issuing Bank
until the date such amount is paid to the Agent, at the Federal Funds Rate for
its account or the account of such Issuing Bank, as applicable. If such Lender
shall pay to the Agent such amount for the account of any such Issuing Bank on
any Business Day, such amount so paid in respect of principal shall constitute a
Revolving Credit Advance made by such Lender on
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such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Revolving Credit Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Agent (with a copy to the Company) on the first Business Day of each month a
written report summarizing Issuance and expiration dates of Letters of Credit
issued by such Issuing Bank during the preceding month and drawings during such
month under all Letters of Credit and (B) to the Agent (with a copy to the
Company) on the first Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on such
date, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Revolving Credit Commitment from the date hereof in the case of
each Initial Lender and from the effective date specified in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2005, and on the later of the Termination Date and the date
all Advances are paid in full.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent
for the account of each Lender a commission on such Lender's Ratable Share of
the average daily aggregate Available Amount of all Letters of Credit issued for
the account of such Borrower and outstanding from time to time at a rate per
annum equal to the sum of (x) the Applicable Margin for Eurocurrency Rate
Advances in effect from time to time during such calendar quarter plus (y) the
Applicable Utilization Fee in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing with the quarter ended June 30, 2005, and on the Termination Date;
provided that the Applicable Margin shall be 2% above the Applicable Margin in
effect upon the occurrence and during the continuation of an Event of Default if
such Borrower is required to pay default interest pursuant to Section 2.07(b).
(ii) Each Borrower shall pay to each Issuing Bank, for its own
account, a fronting fee and such other commissions, issuance fees,
transfer fees and other fees and charges in connection with the Issuance
or administration of each Letter of Credit as such Borrower and such
Issuing Bank shall agree.
(c) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
SECTION 2.05. Termination or Reduction of the Commitments. The
Company shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or permanently reduce in part the Revolving Credit
Commitments or the Swing Line Commitments, provided that (a) the amount of each
such reduction shall not exceed the Unused Commitments or the unused Swing Line
Commitments, respectively, (b) each partial reduction of the Revolving Credit
Commitments shall be applied ratably to the respective Revolving Credit
Commitments of the Lenders, (c) each partial reduction of the Swing Line
Commitments shall be applied ratably to the respective Swing Line Commitments of
the Swing Line Lenders and (d) each partial reduction shall be in the aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings.
(a) Revolving Credit Advances. Each Borrower shall repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances made to it and then outstanding.
(b) Letter of Credit Drawings. The obligations of each Borrower
under any Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit issued for the account of such
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Borrower shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by such Borrower is without prejudice to, and does not constitute a
waiver of, any rights such Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by such
Borrower thereof, including as provided in Section 9.15):
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of such Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, the
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of such Borrower in respect
of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of an Issuing Bank, such Issuing Bank shall be
deemed to have exercised reasonable care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(c) Swing Line Advances. Each Borrower shall repay to the Agent for
the ratable account of the Swing Line Banks and each other Lender which has made
a Swing Line Advance the outstanding principal amount of each Swing Line Advance
made to it by each of them on the earlier of the maturity date specified in the
applicable Notice of Swing Line Borrowing (which maturity shall be no later than
ten Business Days after the requested date of such Borrowing) and the
Termination Date.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. Each
Borrower shall pay interest on the unpaid principal amount of each Advance made
to it and owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
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(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance and for each Swing Line Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Applicable Utilization Fee in effect from time to time,
payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full or Swing Line Advance is paid
in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance plus (y) the Applicable Margin in effect
from time to time plus (z) the Applicable Utilization Fee in effect from
time to time, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), the Agent may, and upon the
request of the Required Lenders shall, require the Borrowers to pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees, if requested by the Agent, to furnish to the Agent timely information
for the purpose of determining each Eurocurrency Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (A) the Borrower of such Eurocurrency Rate Advances will, on
the last day of the then existing Interest Period therefor, (1) if such
Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such
Advances or (y) Convert such Advances into Base Rate Advances and (2) if such
Eurocurrency Rate Advances are denominated in any Committed Currency, either (x)
prepay such Advances or (y) exchange such Advances into an Equivalent amount of
Dollars and Convert such Advances into Base Rate Advances and (B) the obligation
of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances
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are denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Committed Currency, be exchanged
for an Equivalent amount of Dollars and Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than the Revolving Credit Borrowing Minimum,
such Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Committed Currency, be exchanged
for an Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in Dollars, be Converted into Base Rate Advances and
(B) if such Eurocurrency Rate Advances are denominated in any Committed
Currency, be exchanged for an Equivalent amount of Dollars and be Converted into
Base Rate Advances and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurocurrency Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate for any Eurocurrency Rate Advances after the Agent has
requested such information,
(i) the Agent shall forthwith notify the applicable Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, Convert into a Base Rate Advance and
(B) if such Eurocurrency Rate Advance is denominated in any Committed
Currency, be prepaid by the applicable Borrower or be automatically
exchanged for an Equivalent amount of Dollars and be Converted into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Revolving Credit Advances into Eurocurrency Rate
Advances shall be suspended until the Agent shall notify the Company and
the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower of any Advance may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all or any portion of the Revolving Credit Advances
denominated in Dollars of one Type comprising the same Borrowing into Revolving
Credit Advances denominated in Dollars of the other Type; provided, however,
that any Conversion of Eurocurrency Rate Advances into Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurocurrency Rate
Advances, any Conversion of Base Rate Advances into Eurocurrency Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(c) and no Conversion of any Revolving Credit Advances shall result in more
separate Revolving Credit Borrowings than permitted under Section 2.02(c). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into
Eurocurrency Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
SECTION 2.10. Prepayments of Advances. (a) Optional. Each Borrower
may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to
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the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment of Revolving Credit Advances shall be in an
aggregate principal amount of not less than the Revolving Credit Borrowing
Minimum or a Revolving Credit Borrowing Multiple in excess thereof, (y) each
partial prepayment of Swing Line Advances shall be in an aggregate principal
amount of not less than $1,000,000 and (z) in the event of any such prepayment
of a Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Company
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus the aggregate Available
Amount of all Letters of Credit then outstanding plus (B) the Equivalent in
Dollars (determined on the third Business Day prior to such interest payment
date) of the aggregate principal amount of all Advances denominated in Committed
Currencies then outstanding exceeds 103% of the aggregate Commitments of the
Lenders on such date, the Borrowers shall, as soon as practicable and in any
event within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Advances owing by the Borrowers in an
aggregate amount sufficient to reduce such sum to an amount not to exceed 100%
of the aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance on a date other than the last day of an Interest Period or at its
maturity, any additional amounts which the applicable Borrower shall be
obligated to reimburse to the Lenders in respect thereof pursuant to Section
9.04(c). The Agent shall give prompt notice of any prepayment required under
this Section 2.10(b) to the Company and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit (excluding for purposes of this Section 2.11 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.14 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Company shall from time to time, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost; provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Company and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the Issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the Issuance or maintenance of or participation in any
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Letters of Credit. A certificate as to such amounts submitted to the Company and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or to fund or maintain Eurocurrency Rate Advances in Dollars
or any Committed Currency hereunder, (a) each Eurocurrency Rate Advance will
automatically, upon such demand (i) if such Eurocurrency Rate Advance is
denominated in Dollars, be Converted into a Base Rate Advance and (ii) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be exchanged
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or to
Convert Revolving Credit Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall
make each payment hereunder (except with respect to principal of, interest on,
and other amounts relating to, Advances denominated in a Committed Currency),
irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. Dollars to the Agent at the
applicable Agent's Account in same day funds. Each Borrower shall make each
payment hereunder with respect to principal of, interest on, and other amounts
relating to, Advances denominated in a Committed Currency, irrespective of any
right of counterclaim or set-off, not later than 11:00 A.M. (at the Payment
Office for such Committed Currency) on the day when due in such Committed
Currency to the Agent, by deposit of such funds to the applicable Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest, fees or
commissions ratably (other than amounts payable pursuant to Section 2.03,
2.04(b), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder as
a result of a Commitment Increase pursuant to Section 2.18 and upon the Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date,
the Agent shall make all payments hereunder and under any Notes issued in
connection therewith in respect of the interest assumed thereby to the Assuming
Lender. Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(c), from
and after the effective date specified in such Assignment and Acceptance, the
Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurocurrency Rate or the Federal
Funds Rate and of fees and Letter of Credit commissions shall be made by the
Agent on the basis of a year of 360 days (or, in each case of Advances
denominated in Committed Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, fee or commission,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurocurrency Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the
22
Agent may assume that such Borrower has made such payment in full to the Agent
on such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at (i) the Federal Funds Rate
in the case of Advances denominated in Dollars or (ii) the cost of funds
incurred by the Agent in respect of such amount in the case of Advances
denominated in Committed Currencies.
(e) To the extent that the Agent receives funds for application to
the amounts owing by any Borrower under or in respect of this Agreement or any
Note in currencies other than the currency or currencies required to enable the
Agent to distribute funds to the Lenders in accordance with the terms of this
Section 2.13, the Agent shall be entitled to convert or exchange such funds into
Dollars or into a Committed Currency or from Dollars to a Committed Currency or
from a Committed Currency to Dollars, as the case may be, to the extent
necessary to enable the Agent to distribute such funds in accordance with the
terms of this Section 2.13; provided that each Borrower and each of the Lenders
hereby agree that the Agent shall not be liable or responsible for any loss,
cost or expense suffered by such Borrower or such Lender as a result of any
conversion or exchange of currencies affected pursuant to this Section 2.13(e)
or as a result of the failure of the Agent to effect any such conversion or
exchange; and provided further that the Borrowers agree to indemnify the Agent
and each Lender, and hold the Agent and each Lender harmless, for any and all
losses, costs and expenses incurred by the Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange any
currencies) in accordance with this Section 2.13(e), absent gross negligence or
willful misconduct on the part of the Agent or such Lender, respectively.
SECTION 2.14. Taxes. (a) Any and all payments by each Borrower to or
for the account of any Lender or the Agent hereunder or under the Notes or any
other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes any other
documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto other than such
liability (including penalties, interest and expenses) attributable to the acts
of or failure to act by such Lender. This indemnification shall be made within
30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor. Upon request from a Borrower, the Lender or Agent (as
the case may be) shall provide such Borrower with such information and
documentation as to the calculation of the indemnification payment as such
Borrower may reasonably request.
23
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States (a "non-U.S. Lender"), on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender and
on the date of the Assumption Agreement or the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as reasonably requested in writing by the Company (but
only so long as such Lender remains lawfully able to do so), shall provide each
of the Agent and the Company with two original Internal Revenue Service Forms
W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a non-U.S. Lender has
failed to provide the Company with the appropriate form, certificate or other
document described in Section 2.14(e) (other than if such failure is due to a
change in law, or in the interpretation or application thereof, occurring
subsequent to the date on which a form, certificate or other document originally
was required to be provided), such non-U.S. Lender shall not be entitled to
payment or indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, the Company shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) If an additional payment is made under subsection (a) or (c)
above for the account of any Lender and such Lender, in its sole discretion
(exercising good faith), determines that it has finally and irrevocably received
or been granted a credit against or release or remission for, or repayment of,
any tax paid or payable by it in respect of or calculated with reference to the
deduction or withholding giving rise to such payment, such Lender shall, to the
extent that it determines that it can do so without prejudice to the retention
of the amount of such credit, relief, remission or repayment, pay to the
applicable Borrower such amount as the Lender shall, in its sole discretion
(exercising good faith), have determined to be attributable to such deduction or
withholding and which will leave
24
such Lender (after such payment) in no worse position than it would have been in
if such Borrower had not been required to make such deduction or withholding.
Such Lender shall provide to the applicable Borrower reasonable information
regarding any creditable amounts it expects to receive, and the expected time
for receiving such credit or refund. Nothing herein contained shall interfere
with the right of a Lender to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Lender to claim any tax credit or to disclose any
information relating to its tax affairs or any computations in respect thereof
or require any Lender to do anything that would prejudice its ability to benefit
from any other credits, reliefs, remissions or repayments to which it may be
entitled.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than (x)
as payment of an Advance made by an Issuing Bank pursuant to the first sentence
of Section 2.03(c), (y) as a payment of a Swing Line Advance made by a Swing
Line Bank that has not been participated to the other Lenders pursuant to
Section 2.02(b) or (z) pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of
its Ratable Share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and] each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from such Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of such Borrower and its Subsidiaries.
25
SECTION 2.18. Increase in the Aggregate Revolving Credit
Commitments. (a) The Company may, at any time but in any event not more than
once in any calendar year prior to the Termination Date, by notice to the Agent,
request that the aggregate amount of the Revolving Credit Commitments be
increased by an amount of $50,000,000 or an integral multiple thereof (each a
"Commitment Increase") to be effective as of a date that is at least 90 days
prior to the scheduled Termination Date (the "Increase Date") as specified in
the related notice to the Agent; provided, however that (i) in no event shall
the aggregate amount of the Revolving Credit Commitments at any time exceed
$750,000,000 and (ii) on the date of any request by the Company for a Commitment
Increase and on the related Increase Date the applicable conditions set forth in
Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by the
Company for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Lenders wishing to participate in the Commitment
Increase must commit to an increase in the amount of their respective Revolving
Credit Commitments (the "Commitment Date"). Each Lender that is willing to
participate in such requested Commitment Increase (each an "Increasing Lender")
shall, in its sole discretion, give written notice to the Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Revolving Credit Commitment. If the Lenders notify the Agent that they are
willing to increase the amount of their respective Revolving Credit Commitments
by an aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the Lenders
willing to participate therein in such amounts as are agreed between the Company
and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify
the Company as to the amount, if any, by which the Lenders are willing to
participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Company may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Revolving Credit Commitment of each such Eligible Assignee
shall be in an amount of $10,000,000 or more.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.18(b) (each such Eligible Assignee, an "Assuming Lender") shall become
a Lender party to this Agreement as of such Increase Date and the Revolving
Credit Commitment of each Increasing Lender for such requested Commitment
Increase shall be so increased by such amount (or by the amount allocated to
such Lender pursuant to the last sentence of Section 2.18(b)) as of such
Increase Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of
the Company or the Executive Committee of such Board approving the
Commitment Increase and the corresponding modifications to this Agreement
and (B) an opinion of counsel for the Company (which may be in-house
counsel), in substantially the form of Exhibit D hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Company and the Agent (each an
"Assumption Agreement"), duly executed by such Eligible Assignee, the
Agent and the Company; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Revolving Credit Commitment in a writing satisfactory to
the Company and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Company, on or before 1:00 P.M. (New York City time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
Increase Date, make available for the account of its
26
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, in the case of such Assuming Lender, an amount equal to such Assuming
Lender's ratable portion of the Borrowings then outstanding (calculated based on
its Revolving Credit Commitment as a percentage of the aggregate Revolving
Credit Commitments outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the
excess of (i) such Increasing Lender's ratable portion of the Borrowings then
outstanding (calculated based on its Revolving Credit Commitment as a percentage
of the aggregate Revolving Credit Commitments outstanding after giving effect to
the relevant Commitment Increase) over (ii) such Increasing Lender's ratable
portion of the Borrowings then outstanding (calculated based on its Revolving
Credit Commitment (without giving effect to the relevant Commitment Increase) as
a percentage of the aggregate Revolving Credit Commitments (without giving
effect to the relevant Commitment Increase). After the Agent's receipt of such
funds from each such Increasing Lender and each such Assuming Lender, the Agent
will promptly thereafter cause to be distributed like funds to the other Lenders
for the account of their respective Applicable Lending Offices in an amount to
each other Lender such that the aggregate amount of the outstanding Advances
owing to each Lender after giving effect to such distribution equals such
Lender's ratable portion of the Borrowings then outstanding (calculated based on
its Revolving Credit Commitment as a percentage of the aggregate Revolving
Credit Commitments outstanding after giving effect to the relevant Commitment
Increase).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since
August 31, 2004.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material
adverse change in the status, or financial effect on the Company or any of
its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the
Company and its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Company shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders associated with this Agreement (including the
accrued fees and expenses of counsel to the Agent).
27
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and
the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of Holland & Knight LLP, counsel for
the Company, and the general counsel of the Company, substantially
in the form of Exhibits D-1 and D-2 hereto, respectively, and as to
such other matters as any Lender through the Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the Agent.
(h) The Company shall have terminated the commitments of the lenders
and repaid or prepaid all of the obligations under, the Three-Year Loan
Agreement dated as of July 14, 2003 among the Company, the lenders parties
thereto and Bank One, NA, as administrative agent, and each of the Lenders
that is a party to such credit facility hereby waives, upon execution of
this Agreement, any notice required by said Loan Agreement relating to the
termination of commitments thereunder.
SECTION 3.02. Initial Advance to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date of that
is ten Business Days prior to such initial Advance of each of the following, in
form and substance reasonably satisfactory to the Agent and dated such date, and
(except for the Notes) in sufficient copies for each Lender:
(a) The Notes of such Designated Subsidiary to the order of the
Lenders to the extent requested by any Lender pursuant to Section 2.16.
(b) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the Notes
to be delivered by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement.
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(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such
Designated Subsidiary authorized to sign its Designation Agreement and the
Notes to be delivered by it and the other documents to be delivered by it
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, certifying that such Designated Subsidiary has obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated Subsidiary
to execute and deliver its Designation Agreement and the Notes to be
delivered by it and to perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house counsel) to
such Designated Subsidiary substantially in the form of Exhibit D hereto,
and as to such other matters as any Lender through the Agent may request.
(g) Such other approvals, opinions or documents as any Lender,
through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and
Commitment Increase. The obligation of each Lender and each Swing Line Bank to
make an Advance (other than (x) a Swing Line Advance made by a Lender pursuant
to Section 2.02(b) or (y) an Advance made by any Issuing Bank or any Lender
pursuant to Section 2.03(c)) on the occasion of each Borrowing, the obligation
of each Issuing Bank to issue a Letter of Credit and each Commitment Increase
shall be subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing, such issuance or the applicable
Increase Date (as the case may be) (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or request for Commitment
Increase and the acceptance by any Borrower of the proceeds of such Borrowing,
such issuance or such Increase Date shall constitute a representation and
warranty by such Borrower that on the date of such Borrowing, such issuance or
such Increase Date such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in Section (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such Borrowing, such issuance or
such Commitment Increase and to the application of the proceeds therefrom,
as though made on and as of such date, and additionally, if such Borrowing
or issuance shall have been requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained in
its Designation Agreement are correct on and as of the date of such
Borrowing or such issuance, before and after giving effect to such
Borrowing, such issuance or such Commitment Increase and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing, such issuance or such Commitment Increase or from the
application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by
29
notice to the Lenders, designates as the proposed Effective Date or the date of
the initial Advance to the applicable Designated Subsidiary, as the case may be,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date and each date of initial Advance to a
Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the other Loan Documents to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Company's charter or
by-laws or (ii) any material law or any material contractual restriction
binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by the Company of this Agreement or the other Loan Documents
to be delivered by it.
(d) This Agreement has been, and each of the other Loan Documents to
be delivered by it when delivered hereunder will have been, duly executed
and delivered by the Company. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding obligation
of each Borrower party thereto enforceable against such Borrower in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or law).
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at August 31, 2004, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the Consolidated balance sheet of the
Company and its Subsidiaries as at February 28, 2005, and the related
Consolidated statements of income and cash flows of the Company and its
Subsidiaries for the six months then ended, duly certified by the chief
financial officer of the Company, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as
at February 28, 2005, and said statements of income and cash flows for the
six months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Company and its Subsidiaries as at such dates
and the Consolidated results of the operations of the Company and its
Subsidiaries for the periods ended on such dates, all in accordance with
United States generally accepted accounting principles consistently
applied. Since August 31, 2004, there has been no Material Adverse Change.
(f) There is no pending or, to the Company's knowledge, overtly
threatened action, suit, investigation, litigation or administrative or
judicial proceeding, including, without limitation, any Environmental
Action, affecting the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect (other than the Disclosed Litigation), and
there has been no material adverse change in the status, or financial
effect on the Company or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b)
30
hereto or (ii) purports to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(g) No Borrower is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) No Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of the Company or any other
Borrower to the Agent or any Lender in connection with the negotiation and
syndication of this Agreement or pursuant to the terms of this Agreement
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein not
misleading.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA, Environmental Laws and the Patriot Act, except to the extent such
failure to comply could reasonably be expected to have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither the Company nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Company
or such Subsidiary operates; provided, however, that the Company and its
Subsidiaries may self-insure to the extent consistent with prudent
business practice for companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that the Company and its Subsidiaries may consummate any merger
or consolidation permitted under Section 5.02(b) or dissolve or terminate
the existence of any Subsidiary of the Company possessing immaterial
assets or liabilities or no continuing business purpose, in either case as
determined by the Board of Directors of the Company or such Subsidiary in
its reasonable discretion, and provided further that neither the Company
nor any of its Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Company or such Subsidiary
shall determine that the preservation
31
thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Company, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time during normal business
hours and from time to time upon reasonable notice, permit the Agent or
any of the Lenders or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account of,
and visit the properties of, the Company and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the Company and any of
its Subsidiaries with any of their officers or directors and with their
independent certified public accountants, subject to applicable
regulations of the Federal government relating to classified information
and reasonable security and safety regulations of the Company.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Company and each such Subsidiary in accordance with, and
to the extent required by, United States generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, in accordance with customary
and prudent business practices for similar businesses.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates (other than the Company and its
wholly-owned Subsidiaries) on terms that are fair and reasonable and no
less favorable to the Company or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Agent, who shall furnish
to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
the Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the chief financial
officer of the Company as having been prepared in accordance with
United States generally accepted accounting principles and
certificates of the chief financial officer of the Company as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any
change in United States generally accepted accounting principles
used in the preparation of such financial statements, the Company
shall also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
annual audit report for such year for the Company and its
Subsidiaries, containing the Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Company and
its Subsidiaries for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by KPMG LLP or other
independent public accountants acceptable to the Required Lenders
and certificates of the chief financial officer of the Company as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any
change in United States generally accepted accounting principles
used in the preparation of such financial
32
statements, the Company shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(iii) as soon as possible and in any event within seven days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Company
setting forth details of such Default and the action that the
Company has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Company sends to any of its securityholders,
and copies of all reports and registration statements that the
Company or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Company or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
Financial reports required to be delivered pursuant to clauses (i),
(ii) and (iv) above shall be deemed to have been delivered on the date on
which such report is posted on the Company's website at ▇▇▇.▇▇▇▇▇.▇▇▇, and
such posting shall be deemed to satisfy the financial reporting
requirements of clauses (i), (ii) and (iv) above, it being understood that
the Company shall provide all other reports and certificates required to
be delivered under this Section 5.01(i) in the manner set forth in Section
9.02.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Company or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment,
or Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired
(and any accessions or additions thereto, and proceeds thereof), and
no such extension, renewal or replacement shall extend to or cover
any properties not theretofore subject to the Lien being extended,
renewed or replaced, provided further that the aggregate principal
amount of the indebtedness secured by the Liens referred to in this
clause (ii) shall not exceed the amount specified therefor in
Section 5.02(d)(iii) at any time outstanding,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any
Subsidiary of the Company or becomes a Subsidiary of the
33
Company; provided that such Liens were not created in contemplation
of such merger, consolidation or acquisition and do not extend to
any assets other than those of the Person so merged into or
consolidated with the Company or such Subsidiary or acquired by the
Company or such Subsidiary,
(v) assignments of the right to receive income or Liens that
arise in connection with receivables securitization programs, in an
aggregate principal amount not to exceed the amount specified
therefor in Section 5.02(d)(v) at any time outstanding (for purposes
of this clause (iv), the "principal amount" of a receivables
securitization program shall mean the Invested Amount), and
(vi) Liens securing Debt of Subsidiaries of the Company
organized under the laws of any country other than the United States
of America or a State thereof, which Debt is permitted under Section
5.02(d),
(vii) Liens securing contingent obligations in respect of
acceptances, letters of credit, bank guarantees, surety bonds or
similar extensions of credit,
(viii) other Liens securing Debt in an aggregate principal
amount not to exceed the amount specified therefor in Section
5.02(d)(iv) at any time outstanding,
(ix) Liens that are within the general parameters customary in
the industry and incurred in the ordinary course of business
securing Debt under Hedge Agreements designed solely to protect the
Company or any of its Subsidiaries from fluctuations in interest
rates, currencies or the price of commodities,
(x) Liens arising in connection with obligations permitted
under Section 5.02(d)(ix), provided that such Liens shall not extend
beyond the amounts on deposit in such deposit accounts, and
(xi) the replacement, extension or renewal of any Lien
permitted by clause (iii) or (iv) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into any Person, or
permit any of its Subsidiaries to do so, except (i) that any Subsidiary of
the Company may merge or consolidate with or into any other Subsidiary of
the Company, (ii) any Subsidiary of the Company may merge into the Company
and (iii) any Subsidiary of the Company and the Company may merge with any
other Person so long as a result of one or a series of transactions, a
Subsidiary or, if the Company is a party to such transaction, the Company
is the surviving entity, provided, in each case, that no Default shall
have occurred and be continuing at the time of such proposed transaction
or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by United States
generally accepted accounting principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed to the Company or to a wholly owned Subsidiary
of the Company or under this Agreement or the Notes,
34
(ii) Debt existing on the Effective Date and described on
Schedule 5.02(d) hereto (the "Existing Debt"), and any Debt
extending the maturity of, or refunding or refinancing, in whole or
in part, the Existing Debt, provided that the principal amount of
such Existing Debt shall not be increased above the principal amount
thereof outstanding immediately prior to such extension, refunding
or refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing,
(iii) Debt secured by Liens permitted by Section 5.02(a)(ii)
aggregating for the Company and all of the Company's Subsidiaries
not more than $25,000,000 at any one time outstanding,
(iv) Debt that, in aggregate with (but without duplication of)
all Debt secured by Liens permitted by Section 5.02(a)(viii), does
not exceed $75,000,000 at any one time outstanding,
(v) Debt incurred or assumed or acquired by Subsidiaries of
the Company organized under the laws of any country other than the
United States of America or a State thereof aggregating for all such
Subsidiaries of not more than $200,000,000 at any one time
outstanding,
(vi) Debt arising in connection with receivables
securitization programs, in an aggregate principal amount not to
exceed $650,000,000 at any time outstanding (for purposes of this
clause (v), the "principal amount" of a receivables securitization
program shall mean the Invested Amount),
(vii) obligations of any Subsidiary of the Company organized
under the laws of any country other than the United States of
America or a State thereof under any Hedge Agreements entered into
in the ordinary course of business to protect the Company and its
Subsidiaries against fluctuations in interest or exchange rates,
(viii) contingent obligations in respect of acceptances,
letters of credit, bank guarantees, surety bonds or similar
extensions of credit,
(ix) obligations which in aggregate do not exceed $30,000,000
arising in connection with the administration and operation of
deposit accounts of the Company and any of its Subsidiaries
organized under the laws of any country other than the United States
of America or a State thereof in connection with cross-border,
multiple currency cash pooling arrangements, including overdraft
facilities, and
(x) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets, except (i) sales of
inventory in the ordinary course of its business or sales of scrap or
obsolete material or equipment, (ii) sales or dispositions of assets in
connection with a receivables securitization program to the extent
authorized by Section 5.02(d)(v), (iii) in a transaction authorized by
Section 5.02(b), (iv) sales or dispositions between or among the Company
and its wholly-owned Subsidiaries, (v) sales of property in connection
with a sale and leaseback transaction provided that the net present value
of the aggregate rental obligations under such leases or contracts
(discounted at the implied interest rate of such lease or contract) does
not exceed 10% of the Consolidated total assets of the Company and its
Subsidiaries and (vi) sales of assets for fair value.
35
(f) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
from the business as carried on by the Company and its Subsidiaries at the
date hereof.
(g) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its capital stock
(whether through a covenant restricting dividends, a financial covenant or
otherwise), except (i) this Agreement, (ii) any agreement or instrument
evidencing Existing Debt and (iii) any agreement in effect at the time
such Subsidiary becomes a Subsidiary of the Company, so long as such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Company.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid, and Letter of Credit is outstanding or any Lender shall have any
Commitment hereunder, the Company will:
(a) Debt to EBITDA Ratio. Maintain a ratio of (i) Debt as of any
date to (ii) Consolidated EBITDA of the Company and its Consolidated
Subsidiaries for the period of four fiscal quarters most recently ended,
of not greater than 3.5 to 1.0.
(b) Interest Coverage Ratio. Maintain a ratio of (i) Consolidated
EBITDA of the Company and its Consolidated Subsidiaries for the period of
four fiscal quarters then ended to (ii) interest payable on, and
amortization of debt discount in respect of, all Debt during such period
by the Company and its Consolidated Subsidiaries, of not less than 3.0 to
1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Company or any other Borrower shall fail to pay any
principal of any Advance when the same becomes due and payable; or the
Company or any other Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) in connection with this Agreement or
by any Designated Subsidiary in the Designation Agreement pursuant to
which such Designated Subsidiary became a Borrower hereunder shall prove
to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i), 5.02
or 5.03, or (ii) the Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Company by the
Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $50,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Company or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any,
36
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), required to be purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; or
(e) The Company or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Company or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur; or the Company or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$50,000,000 in the aggregate shall be rendered against the Company or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert (other
than the Morean Group) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Company (or other securities convertible into such Voting
Stock) representing 30% or more of the combined voting power of all Voting
Stock of the Company; or (ii) during any period of up to 12 consecutive
months, commencing before or after the date of this Agreement, individuals
who at the beginning of such 12-month period were directors of the Company
shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Company (except to
the extent that individuals who at the beginning of such 12-month period
were replaced by individuals (x) elected by a majority of the remaining
members of the board of directors of the Company or (y) nominated for
election by a majority of the remaining members of the board of directors
of the Company and thereafter elected as directors by the shareholders of
the Company ); or
(h) The Company or any of its ERISA Affiliates shall incur, or shall
be reasonably likely to incur liability in excess of $50,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Company
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
(i) so long as any Subsidiary of the Company is a Designated
Subsidiary, Section 7.01 shall for any reason cease to be valid and
binding on or enforceable against the Company, or the Company shall so
state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances (other than Advances to be made
37
by a Lender pursuant to Section 2.02(b) and Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrowers, declare the Advances, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Company or any other Borrower under the any
Bankruptcy Law, (A) the obligation of each Lender to make Advances (other than
Advances to be made by a Lender pursuant to Section 2.02(b) and Advances by an
Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks
to issue Letters of Credit shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrowers to, and forthwith upon such
demand the Borrowers will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders and not more disadvantageous to the Borrowers than clause (a);
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under any Bankruptcy Law, an amount
equal to the aggregate Available Amount of all outstanding Letters of Credit
shall be immediately due and payable to the Agent for the account of the Lenders
without notice to or demand upon the Borrowers, which are expressly waived by
each Borrower, to be held in the L/C Cash Deposit Account. If at any time an
Event of Default is continuing the Agent determines that any funds held in the
L/C Cash Deposit Account are subject to any right or claim of any Person other
than the Agent and the Lenders or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit, the Borrowers
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Deposit Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Deposit Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the
extent permitted by applicable law. After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such L/C Cash Deposit Account shall be returned to the Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty. The Company hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Borrower now
or hereafter existing under or in respect of this Agreement and the Notes
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Agent or any Lender in enforcing any rights
under this Agreement. Without limiting the generality of the foregoing, the
Company's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by such Borrower to the Agent or any
Lender under or in respect of this Agreement and the Notes but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
38
SECTION 7.02. Guaranty Absolute. (a) The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Lender with respect thereto. The obligations of the
Company under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Borrower under or in respect
of this Agreement and the Notes, and a separate action or actions may be brought
and prosecuted against the Company to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Company under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Company hereby irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement, any
Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement and the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of any collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Borrower under this
Agreement and the Notes or any other assets of any Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the
Company any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to the Agent or such Lender (the Company
waiving any duty on the part of the Agent and the Lenders to disclose such
information);
(g) the failure of any other Person to execute or deliver this
Guaranty or any other guaranty or agreement or the release or reduction of
liability of the Company or other guarantor or surety with respect to the
Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Borrower or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect
39
or insure any Lien or any property subject thereto or exhaust any right or take
any action against any Borrower or any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Company or other rights of the Company to proceed against any Borrower,
any other guarantor or any other Person or any collateral and (ii) any
defense based on any right of set-off or counterclaim against or in
respect of the obligations of the Company hereunder.
(d) The Company hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and the Notes and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all Letters of Credit shall have expired or been
terminated and the Commitments shall have expired or been terminated. If any
amount shall be paid to the Company in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty,
(b) the Termination Date and (c) the latest date of expiration or termination of
all Letters of Credit, such amount shall be received and held in trust for the
benefit of the Agent and the Lenders, shall be segregated from other property
and funds of the Company and shall forthwith be paid or delivered to the Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Agreement and the Notes, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) the Company shall make payment to the Agent or any Lender of all
or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, (iii) the Termination Date shall have occurred and (iv)
all Letters of Credit shall have expired or been terminated, the Agent and the
Lenders will, at the Company's request and expense, execute and deliver to the
Company appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Company of an
interest in the Guaranteed Obligations resulting from such payment made by the
Company pursuant to this Guaranty.
SECTION 7.05. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and
40
assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, the Agent or any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under this Agreement (including,
without limitation, all or any portion of its Commitments, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to the Agent or such Lender herein or otherwise, in each case as and to the
extent provided in Section 9.07.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender and Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders (or such other number of Lenders as required hereunder),
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Company or any other Borrower pursuant
to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Company), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement (except as expressly provided in Articled III) on
the part of any Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of the Company or any
other Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier
or telegram) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Company or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
41
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Company) from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent (in its capacity as such) in any way relating
to or arising out of this Agreement or any action taken or omitted by the Agent
(in its capacity as such) under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its Ratable Share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent (in its
capacity as such) in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Company. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Company) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank (in its capacity as such) in any way relating to
or arising out of the Loan Documents or any action taken or omitted by such
Issuing Bank (in its capacity as such) hereunder or in connection herewith;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse any such Issuing Bank promptly upon demand for its
Ratable Share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Company under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Company.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to be
paid by the Lenders to the Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank
for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such
other Lender's Ratable Share of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective Ratable Shares of any amounts paid under this Section 8.05 that are
subsequently reimbursed by the Company.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent with the consent, not to be unreasonably withheld or delayed and
so long as no Event of Default has occurred and is continuing, of the Company.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become
42
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VIII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out duties of the Agent. The Sub-Agent shall be subject
to each of the obligations in this Agreement to be performed by the Sub-Agent,
and each of the Company, each other Borrower and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Agent under this Agreement as relate to the
performance of its obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders other than in accordance with Section 2.18, (c)
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f)
release the Company from any of its obligations under Article VII, (g) extend
the expiration date of any Letter of Credit to a date later than the Termination
Date or (h) amend this Section 9.01; and provided further that (x) no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note (y) no amendment, waiver or
consent shall, unless in writing and signed by each Swing Line Bank, in addition
to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Banks under this Agreement; and (z) no amendment,
waiver or consent shall, unless in writing and signed by the Issuing Banks in
addition to the Lenders required above to take such action, adversely affect the
rights or obligations of the Issuing Banks in their capacities as such under
this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), if to the Company or any other Borrower, at the Company's
address at 10506 ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender; and if to
the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Bank Loan Syndications Department; or, as to the Company or the
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Company and the
Agent, provided that materials required to be delivered pursuant to Section
5.01(i)(i), (ii) or (iv) shall be delivered to the Agent as specified in Section
9.02(b) or as otherwise specified to any Borrower by the Agent. All such notices
and communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier or e-mail of an
executed counterpart of any
43
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iv)
shall be delivered to the Agent in an electronic medium in a format acceptable
to the Agent and the Lenders by e-mail at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The
Company agrees that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system (the
"Platform"). The Company acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement. The Company
further agrees to pay on demand all costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Lender in connection with
the enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or Letters of Credit or (ii) the actual or alleged presence of
Hazardous Materials on any property of the Company or any of its Subsidiaries or
any Environmental Action relating in any way to the Company or any of its
Subsidiaries, except, with respect to any Indemnified Party, to the extent such
claim, damage, loss, liability or expense resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an
44
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Company, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Company
also agrees not to assert any claim for special, indirect, consequential or
punitive damages against the Agent, any Lender, any of their Affiliates, or any
of their respective directors, officers, employees, attorneys and agents, on any
theory of liability, arising out of or otherwise relating to the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by any Borrower to or for the account of a
Lender (i) other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.08, 2.10 or 2.12, such Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance. If the amount of the Committed
Currency purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.08 or 2.12 exceeds the sum required to satisfy
such Lender's liability in respect of such Advances, such Lender agrees to remit
to the applicable Borrower such excess.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Company or any Borrower
against any and all of the obligations of the Company or any Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company or the applicable Borrower after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Company and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Company, the
Agent and each Lender and their respective successors and assigns, except that
neither the Company nor any other Borrower shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
with the consent of each Issuing Bank (which consent shall not be unreasonably
withheld or delayed) and, if demanded by the Company (so long as no Default
shall have occurred and be continuing and following a demand by such Lender
pursuant to Section 2.11 or 2.14 or an assertion of illegality pursuant to
Section 2.12) will upon at least five Business Days' notice to such Lender and
the Agent, assign to one or more Persons all or a portion of its rights and
obligations
45
under this Agreement (including, without limitation, all or a portion of its
Revolving Credit Commitment, its Swing Line Commitment, the Advances owing to
it, its participations in Letters of Credit and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of (x) the Revolving Credit
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) the Swing Line
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, in each case, unless the
Company and the Agent otherwise agree, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the
Company pursuant to this Section 9.07(a) shall be arranged by the Company after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Company pursuant to this Section 9.07(a) unless and until such Lender shall
have received one or more payments from either the Borrowers or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Company, such
recordation fee shall be payable by the Company except that no such recordation
fee shall be payable in the case of an assignment made at the request of the
Company to an Eligible Assignee that is an existing Lender. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto with respect to the interest assigned and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder, in addition
to any rights and obligations theretofore held by it as a Lender, and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.11, 2.14 and 9.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations (other than its obligations
under Section 8.05 to the extent any claim thereunder relates to an event
arising prior to such assignment) under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any other Borrower or the
performance or observance by the Company or any other Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that, to the extent it has so
requested, it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and
46
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Company and the other Borrowers, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Company or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Company or any of its Affiliates) in or to all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Company , the other Borrowers, the Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Company or any other Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company furnished to such Lender by
or on behalf of the Company; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Company Information relating to the Company
received by it from such Lender in accordance with Section 9.08 hereof.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time, without notice to or consent of any Person, assign,
pledge or create a security interest in all or any portion of its rights under
this Agreement (including, without limitation, the Advances owing to it and any
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender may
disclose to any Person any confidential, proprietary or non-public information
of the Company furnished to the Agent or the Lenders by the Company (such
information being referred to collectively herein as the "Company Information"),
except that each of the Agent and each of the Lenders may disclose Company
Information (i) to its and its affiliates' employees, officers, directors,
agents and advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Company
Information and instructed to keep such Company Information confidential on
substantially the same terms as provided herein), (ii) to the extent requested
by any regulatory
47
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) to the extent reasonably required in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section 9.08, to
any assignee or participant or prospective assignee or participant or to any
direct, indirect, actual or prospective counterparty (and its advisor) to any
swap, derivative or securitization transaction entered into in connection with
this Credit Agreement, (vii) to the extent such Company Information (A) is or
becomes generally available to the public on a non-confidential basis other than
as a result of a breach of this Section 9.08 by the Agent or such Lender, or (B)
is or becomes available to the Agent or such Lender on a nonconfidential basis
from a source other than the Company and (viii) with the consent of the Company.
SECTION 9.09. Designated Subsidiaries. (a) Designation. The Company
may at any time, and from time to time, by delivery to the Agent of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the indefeasible payment and performance in
full of all of the indebtedness, liabilities and obligations under this
Agreement of any Designated Subsidiary then, so long as at the time no Notice of
Borrowing or Notice of Issuance in respect of such Designated Subsidiary is
outstanding, such Subsidiary's status as a "Designated Subsidiary" shall
terminate upon notice to such effect from the Agent to the Lenders (which notice
the Agent shall give promptly, and only upon its receipt of a request therefor
from the Company). Thereafter, the Lenders shall be under no further obligation
to make any Advance hereunder to such Designated Subsidiary.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Committed Currency into Dollars,
the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase such Committed Currency with Dollars
at Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of any Borrower in respect of any sum due from it
in any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be)
48
against such loss, and if the amount of the applicable Primary Currency so
purchased exceeds such sum due to any Lender or the Agent (as the case may be)
in the applicable Primary Currency, such Lender or the Agent (as the case may
be) agrees to remit to such Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the any such New York State
court or in such federal court may be made upon the Company and each Designated
Subsidiary hereby irrevocably appoints the Company its authorized agent to
accept such service of process, and agrees that the failure of the Company to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. The Company and each Designated Subsidiary hereby further irrevocably
consent to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the Company at its address specified pursuant to Section
9.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction. To the extent that each Designated Subsidiary has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each Designated Subsidiary hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.14. Substitution of Currency. If a change in any Committed
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definition of Eurocurrency Rate) will be deemed amended
to the extent determined by the Agent (acting reasonably and in consultation
with the Company) to be necessary to reflect the change in currency and to put
the Lenders and the Borrowers in the same position, so far as possible, that
they would have been in if no change in such Committed Currency had occurred.
SECTION 9.15. No Liability of the Issuing Banks. The Borrowers
assume all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
an Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; or (c) any other circumstances
whatsoever in making or failing to make payment under any Letter of Credit,
except that the applicable Borrower shall have a claim against such Issuing
Bank, and such Issuing Bank shall be liable to such Borrower, to the extent of
any direct, but not consequential, damages suffered by such Borrower that such
Borrower proves were caused by such Issuing Bank's willful misconduct or gross
negligence when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; provided that nothing
herein shall be deemed to excuse such Issuing Bank if it acts with gross
negligence or willful misconduct in accepting such documents.
49
SECTION 9.16. Patriot Act Notice. Each Lender and the Agent (for
itself and not on behalf of any Lender) hereby notifies each Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Borrower, which information
includes the name and address of each Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify each Borrower in
accordance with the Patriot Act. Each Borrower shall provide such information
and take such actions as are reasonably requested by the Agent or any Lenders in
order to assist the Agent and the Lenders in maintaining compliance with the
Patriot Act.
SECTION 9.17. Power of Attorney. Each Subsidiary of the Company may
from time to time authorizes and appoints the Company as its attorney-in-fact to
execute and deliver (a) any amendment, waiver or consent in accordance with
Section 9.01 on behalf of and in the name of such Subsidiary and (b) any notice
or other communication hereunder, on behalf of and in the name of such
Subsidiary. Such authorization shall become effective as of the date on which
such Subsidiary becomes a party hereto and, if requested by the Required
Lenders, delivers to the Agent a power of attorney enforceable under applicable
law and any additional information to the Agent as necessary to make such power
of attorney the legal, valid and binding obligation of such Subsidiary.
50
SECTION 9.18. Waiver of Jury Trial. Each of the Company, the other
Borrowers, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
JABIL CIRCUIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Chief Financial Officer and Treasurer
CITICORP USA, INC.,
as Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Director
51
Initial Lenders
CITICORP USA, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Director
JPMORGAN CHASE BANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Vice President
ABN AMRO BANK N.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇/Panida Wongchantara
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Title: Director/ Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ ▇▇▇▇▇ Dec
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Title: Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
BNP PARIBAS
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Managing Director
ROYAL BANK OF CANADA
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra
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Title: Authorized Signatory
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President and Team Leader
52
U.S. BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
COMERICA BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
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Title: Vice President
CREDIT SUISSE FIRST BOSTON, acting through its
Cayman Islands Branch
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Associate
UBS LOAN FINANCE LLC
By /s/ ▇▇▇▇▇▇▇ ▇. Saint
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Title: Director
By /s/ Salloz ▇▇▇▇▇
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Title: Associate Director
HSBC BANK USA, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
▇▇▇▇▇ FARGO BANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Deputy General Manager
53
