Exhibit 10.1
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CREDIT AGREEMENT
dated as of
January 20, 2005
among
LEXMARK INTERNATIONAL, INC.
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
FLEET NATIONAL BANK and CITIBANK, N.A.
as Co-Syndication Agents
and
KEYBANK NATIONAL ASSOCIATION and SUNTRUST BANK
as Co-Documentation Agents
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................17
SECTION 1.03. Terms Generally................................................17
SECTION 1.04. Accounting Terms; GAAP.........................................17
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................18
SECTION 2.02. Loans and Borrowings...........................................18
SECTION 2.03. Requests for Revolving Borrowings..............................19
SECTION 2.04. Intentionally Omitted..........................................19
SECTION 2.05. Swingline Loans................................................20
SECTION 2.06. Letters of Credit..............................................21
SECTION 2.07. Funding of Borrowings..........................................26
SECTION 2.08. Interest Elections.............................................26
SECTION 2.09. Termination and Reduction of Commitments.......................28
SECTION 2.10. Repayment of Loans; Evidence of Debt...........................28
SECTION 2.11. Prepayment of Loans............................................29
SECTION 2.12. Fees...........................................................30
SECTION 2.13. Interest.......................................................31
SECTION 2.14. Alternate Rate of Interest.....................................32
SECTION 2.15. Increased Costs................................................32
SECTION 2.16. Break Funding Payments.........................................33
SECTION 2.17. Taxes..........................................................34
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....35
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................37
SECTION 2.20. Increase of Commitments........................................38
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers; Subsidiaries.............................40
SECTION 3.02. Authorization; Enforceability..................................40
SECTION 3.03. Governmental Approvals; No Conflicts...........................40
SECTION 3.04. Financial Condition; No Material Adverse Change................41
SECTION 3.05. Properties.....................................................41
Table of Contents
(continued)
Page
SECTION 3.06. Litigation and Environmental Matters...........................41
SECTION 3.07. Compliance with Laws...........................................42
SECTION 3.08. Investment and Holding Company Status..........................42
SECTION 3.09. Taxes..........................................................42
SECTION 3.10. ERISA..........................................................42
SECTION 3.11. Disclosure.....................................................42
SECTION 3.12. Federal Reserve Regulations....................................42
SECTION 3.13. No Default.....................................................42
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.................................................42
SECTION 4.02. Each Credit Event..............................................43
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Change and Other Information.....44
SECTION 5.02. Notices of Material Events.....................................45
SECTION 5.03. Existence; Conduct of Business.................................45
SECTION 5.04. Payment of Obligations.........................................46
SECTION 5.05. Maintenance of Properties; Insurance...........................46
SECTION 5.06. Books and Records; Inspection Rights...........................46
SECTION 5.07. Compliance with Laws...........................................46
SECTION 5.08. Use of Proceeds................................................46
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness...................................................47
SECTION 6.02. Liens..........................................................48
SECTION 6.03. Fundamental Changes............................................49
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions......50
SECTION 6.05. Restrictive Agreements.........................................50
SECTION 6.06. Financial Covenants............................................51
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Table of Contents
(continued)
Page
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices........................................................55
SECTION 9.02. Waivers; Amendments............................................56
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................57
SECTION 9.04. Successors and Assigns.........................................58
SECTION 9.05. Survival.......................................................61
SECTION 9.06. Counterparts; Integration; Effectiveness.......................61
SECTION 9.07. Severability...................................................62
SECTION 9.08. Right of Setoff................................................62
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.....62
SECTION 9.10. WAIVER OF JURY TRIAL...........................................63
SECTION 9.11. Headings.......................................................63
SECTION 9.12. Confidentiality................................................63
SECTION 9.13. USA PATRIOT Act................................................64
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Table of Contents
(continued)
Page
SCHEDULES:
Schedule 2.01 - Commitments
Schedule 2.02 - Eurocurrency Payment Offices
Schedule 2.03 - Mandatory Cost
Schedule 3.01 - Subsidiaries
Schedule 3.06 - Litigation
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.05 - Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Commitment and Acceptance
Exhibit C -- Form of Written Money Transfer Instruction
Exhibit D -- List of Closing Documents
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CREDIT AGREEMENT dated as of January 20, 2005 among LEXMARK INTERNATIONAL,
INC., the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative
Agent, FLEET NATIONAL BANK and CITIBANK, N.A. as Co-Syndication Agents and
KEYBANK NATIONAL ASSOCIATION and SUNTRUST BANK as Co-Documentation Agents.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Credit Agreement (this
"Agreement"), the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the sum of (i) (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate plus, without
duplication, (ii) in the case of Loans by a Lender from its office or branch in
England, the Mandatory Cost.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitment" means the aggregate of the Commitments of all of the
Lenders, as reduced or increased from time to time pursuant to the terms and
conditions hereof. As of the Effective Date, the Aggregate Commitment is
$300,000,000.
"Agreed Currencies" means (i) Dollars, (ii) euro, (iii) British Pounds
Sterling and (iv) Japanese Yen.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Aggregate Commitment represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurocurrency Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to the Index
Debt:
============================================================== ============================== =========================
Eurocurrency Facility Fee
Index Debt Ratings: Spread Rate
-------------------------------------------------------------- ------------------------------ -------------------------
Category 1: A2 or A 0.18% 0.07%
-------------------------------------------------------------- ------------------------------ -------------------------
Category 2: A3 or A- 0.27% 0.08%
-------------------------------------------------------------- ------------------------------ -------------------------
Category 3: Baa1 or BBB+ 0.36% 0.09%
-------------------------------------------------------------- ------------------------------ -------------------------
Category 4: Baa2 or BBB 0.50% 0.125%
-------------------------------------------------------------- ------------------------------ -------------------------
Category 5: Baa3 or BBB- 0.60% 0.15%
-------------------------------------------------------------- ------------------------------ -------------------------
Category 6: Ba1 or BB+ or lower 0.80% 0.20%
============================================================== ============================== =========================
For purposes of, and notwithstanding, the foregoing,
(i) the then applicable Eurocurrency Spread shall be increased by
0.125% for each day that the total Revolving Credit Exposures exceeds 50%
of the actual daily amount of the Aggregate Commitment then in effect (or,
if terminated, in effect immediately prior to such termination);
(ii) if neither ▇▇▇▇▇'▇ nor S&P shall have in effect a rating for the
Index Debt or an issuer rating for the Borrower (other than by reason of
the circumstances referred to in the last sentence of this definition),
then such rating agency shall be deemed to have established a rating in
Category 6 (it being understood and agreed that in the event that only one
of the two rating agencies issues a rating for the Index Debt, such rating
shall determine the Eurocurrency Spread and Facility Fee Rate);
(iii) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P for the Index Debt shall fall within different Categories,
the Applicable Rate shall be based on the higher of the two ratings unless
one of the two ratings is two or more Categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the
Category next below that of the higher of the two ratings;
(iv) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating
system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency, irrespective
of when notice of such change shall have been furnished by the Borrower to
the Administrative Agent and the Lenders pursuant to Section 5.01 or
otherwise and
(v) if the Borrower shall not have any Index Debt outstanding, then
issuer ratings by ▇▇▇▇▇'▇ and S&P for the Borrower shall apply for items
(i) through (iv) above. Each change in the Applicable Rate shall apply
during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next
such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if
either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system
or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Approved Fund" is defined in Section 9.04.
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars shall mean the Equivalent Amount of such currency with respect to
such amount of Dollars on or as of such date, rounded up to the nearest whole
amount of such currency as determined by the Administrative Agent from time to
time.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Lexmark International, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"British Pounds Sterling" means the lawful currency of Great Britain.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed;
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provided that, when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in Agreed Currencies in the London interbank market (and, if the
Borrowings or LC Disbursements which are the subject of a borrowing, drawing,
payment, reimbursement or rate selection are denominated in euro, a day upon
which such clearing system as is determined by the Administrative Agent to be
suitable for clearing or settlement of euro is open for business).
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) the acquisition of direct or indirect Control of the Borrower by any Person
or group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Documentation Agent" means each of KeyBank National Association and
SunTrust Bank in its capacity as co-documentation agent for the credit facility
evidenced by this Agreement.
"Co-Syndication Agent" means each of Fleet National Bank and Citibank, N.A.
in its capacity as co-syndication agent for the credit facility evidenced by
this Agreement.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from
4
time to time pursuant to Section 2.09, (b) increased from time to time pursuant
to Section 2.20 and (c) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$300,000,000.
"Commitment Increase Notice" is defined in Section 2.20.
"Computation Date" is defined in Section 2.04.
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any fiscal period, an amount equal to the sum of (a)
Consolidated Net Income of the Borrower and its Subsidiaries for such fiscal
period, plus (b) in each case to the extent deducted in the calculation of such
Person's Consolidated Net Income and without duplication, (i) depreciation and
amortization for such period, plus (ii) income tax expense for such period, plus
(iii) Consolidated Interest Expense paid or accrued during such period, plus
(iv) other noncash charges for such period (not including accruals of charges
which will be discharged in a following accounting period in cash in the
ordinary course of business), and minus (c) to the extent added in computing
Consolidated Net Income, and without duplication, the sum of (i) interest income
and (ii) any other noncash income (but not including accruals of income which
will be received in a following accounting period in cash in the ordinary course
of business) for such period, in each case all as determined in accordance with
GAAP on a consolidated basis; provided, that with respect to the calculation of
Consolidated EBITDA in determining compliance with the financial covenants
contained in Section 6.06(a) and (b), Consolidated EBITDA shall be calculated,
with respect to Permitted Acquisitions, on a pro forma basis reasonably
satisfactory to the Administrative Agent, but without giving effect to any
projected synergies or cost savings, using historical audited and reviewed
unaudited financial statements obtained from the seller(s) in such Permitted
Acquisition, broken down by fiscal quarter and such other period as is
reasonably requested by the Administrative Agent.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense (including without limitation interest expense under Capital
Lease Obligations that is treated as interest in accordance with GAAP) of the
Borrower and its Subsidiaries calculated on a consolidated basis for such period
with respect to (a) all outstanding Indebtedness of the Borrower and its
Subsidiaries allocable to such period in accordance with GAAP, (b) the Permitted
Receivables Financing and (c) Swap Agreements (including, without limitation,
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers acceptance financing and net costs under interest
rate Swap Agreements to the extent such net costs are allocable to such period
in accordance with GAAP).
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated in accordance
with GAAP on a consolidated basis (without duplication) for such period.
5
"Consolidated Total Assets" means, as of the date of any determination
thereof, total assets of the Borrower and its Subsidiaries calculated in
accordance with GAAP on a consolidated basis as of such date.
"Consolidated Total Indebtedness" means at any time the sum, without
duplication, of (a) the aggregate Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time in accordance
with GAAP, (b) the aggregate amount of the cash advances pursuant to any
Permitted Receivables Financing and (c) Indebtedness of the type referred to in
clauses (a) - (b) hereof of another Person guaranteed by the Borrower or any of
its Subsidiaries.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Event" means a Borrowing, an LC Disbursement or both.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits, proceedings and other matters
disclosed in Schedule 3.06.
"Dollar Amount" of any currency at any date shall mean (i) the amount of
such currency if such currency is Dollars or (ii) the equivalent in such
currency of such amount of Dollars if such currency is a Foreign Currency,
calculated on the basis of the arithmetical mean of the buy and sell spot rates
of exchange of the Administrative Agent for such currency on the London market
at 11:00 a.m., London time, on or as of the most recent Computation Date
provided for in Section 2.04.
"Dollars" or "$" refers to lawful money of the United States of America.
"Effective Commitment Amount" is defined in Section 2.20.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of
6
the Borrower or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"Equivalent Amount" of any currency with respect to any amount of Dollars
at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EU" means the European Union.
"euro" and/or "EUR" means the single currency of the participating member
states of the EU.
7
"Eurocurrency", when used in reference to a currency means an Agreed
Currency and when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Eurocurrency Payment Office" of the Administrative Agent shall mean, for
each of the Agreed Currencies which is a Foreign Currency, the office, branch,
affiliate or correspondent bank of the Administrative Agent for such currency as
specified from time to time by the Administrative Agent to the Borrower and each
Lender. On the date hereof, the Eurocurrency Payment Office for each such Agreed
Currency is set forth on Schedule 2.02.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of America
or any state or political subdivision thereof, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.
"Foreign Currencies" means each Agreed Currency other than Dollars.
"Foreign Currency LC Exposure" means, at any time, the sum of (a) the
Dollar Amount of the aggregate undrawn and unexpired amount of all outstanding
Foreign Currency Letters of Credit at such time plus (b) the aggregate principal
Dollar Amount of all LC
8
Disbursements in respect of Foreign Currency Letters of Credit that have
not yet been reimbursed at such time.
"Foreign Currency Letter of Credit" means a Letter of Credit denominated in
a Foreign Currency.
"Foreign Currency Sublimit" means $150,000,000.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is formed. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof or (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hostile Acquisition" means (a) the acquisition of the Equity Interests of
a Person through a tender offer or similar solicitation of the owners of such
Equity Interests which has not been approved (prior to such acquisition) by the
board of directors (or any other applicable governing body) of such Person or by
similar action if such Person is not a corporation and (b) any such acquisition
as to which such approval has been withdrawn.
9
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding trade accounts payable or accrued liabilities incurred in
the ordinary course of business), (d) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (e)
all Guarantees by such Person of Indebtedness of others, (f) all Capital Lease
Obligations of such Person, (g) all obligations, contingent or otherwise, of
such Person in respect of letters of credit and letters of guaranty and (h) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
money of the Borrower that is not guaranteed by any other Person or subject to
any other credit enhancement.
"Information Memorandum" means the Confidential Information Memorandum
dated December, 2004 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing
10
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate so long as such
Affiliate 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 the Issuing Bank.
"Japanese Yen" means the lawful currency of Japan.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
Dollar Amount of all outstanding Letters of Credit at such time plus (b) the
aggregate Dollar Amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market 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
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the relevant Agreed Currency in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for deposits
in the relevant Agreed Currency with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurocurrency Borrowing for
such Interest Period shall be the rate at which deposits in the relevant Agreed
Currency in an Equivalent Amount of a comparable borrowing amount and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means any mortgage, deed of trust, security interest, pledge,
hypothecation, encumbrance, lien (statutory or otherwise), or other security
agreement or the
11
interests of a vendor or a lessor under any capital lease (or any financing
lease involving substantially the same economic effect as a capital lease);
provided, that neither the licensing of any intellectual property right nor the
holding of any such right subject to any retained right of any licensor or
transferor thereof to use or license the same shall, alone, constitute a Lien on
any such right.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Loan Documents" means this Agreement, any promissory notes executed and
delivered pursuant to Section 2.10(e) and any and all other instruments and
documents executed and delivered in connection with any of the foregoing.
"Local Time" means (i) New York City time in the case of a LC Disbursement
denominated in Dollars and (ii) local time at the place of the relevant LC
Disbursement (or such earlier local time as is necessary for the relevant funds
to be received and transferred to the Administrative Agent for same day value on
the date the relevant reimbursement obligation is due) in the case of a LC
Disbursement denominated in a Foreign Currency.
"Mandatory Cost" is described in Schedule 2.03.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, condition (financial or otherwise) or operations of the
Borrower and the Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), of any one or more of the Borrower and its Subsidiaries in
an aggregate principal amount exceeding $100,000,000.
"Material Worldwide Subsidiary" means any Subsidiary (other than Permitted
Receivables Vehicle), the (a) assets or (b) revenues (excluding intercompany
assets and revenues that would be eliminated upon consolidation in accordance
with GAAP) of which are, at the time of determination (determined, in the case
of clause (a), as of the end of the most recently completed fiscal quarter of
the Borrower, and, in the case of clause (b), in respect of the most recent
period of four consecutive fiscal quarters of the Borrower, for which the
relevant financial information is available), equal to or greater than five
percent (5%) of the consolidated assets or ten percent (10%) of the consolidated
revenues (excluding intercompany assets and revenues that would be eliminated
upon consolidation in accordance with GAAP), respectively, of the Borrower and
its Subsidiaries at such time. Upon the acquisition of a new Subsidiary,
qualification as a "Material Worldwide Subsidiary" shall be determined on a pro
forma basis on the assumption that such Subsidiary had been acquired at the
beginning of the relevant period of four consecutive fiscal quarters.
"Maturity Date" means January 20, 2010.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
12
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Obligations" means all indebtedness (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
obligations and liabilities of any of the Borrower and its Subsidiaries to any
of the Lenders and the Administrative Agent, individually or collectively,
existing on the Effective Date or arising thereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents or any Swap Agreement or in respect of any of the Loans made or
reimbursement obligations incurred or any of the Letters of Credit or other
instruments at any time evidencing any thereof.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Overnight Foreign Currency Rate" means, for any amount payable in a
Foreign Currency, the rate of interest per annum as determined by the
Administrative Agent at which overnight or weekend deposits in the relevant
currency (or if such amount due remains unpaid for more than three Business
Days, then for such other period of time as the Administrative Agent may elect)
for delivery in immediately available and freely transferable funds would be
offered by the Administrative Agent to major banks in the interbank market upon
request of such major banks for the relevant currency as determined above and in
an amount comparable to the unpaid principal amount of the related Credit Event.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" means any acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or
series of related acquisitions by the Borrower or any Subsidiary of all or
substantially all the assets of, or all the Equity Interests in, a Person or
division or line of business of a Person if, at the time of and immediately
after giving effect thereto, (a) no Default has occurred and is continuing or
would arise after giving effect thereto, (b) not less than 70% of the
consolidated revenues of the Borrower and its Subsidiaries shall derive from the
businesses that are substantially similar to those which the Borrower and its
Subsidiaries are engaged in on the Effective Date, (c) the Borrower and the
Subsidiaries are in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Section 6.06 recomputed as of the
last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such acquisition (and any related
incurrence or repayment of Indebtedness, with any new Indebtedness being deemed
to be amortized over the applicable testing period in accordance with its terms)
had occurred on the first day of each relevant period for testing such
compliance and
13
(d) in the case of an acquisition or merger involving the Borrower, the Borrower
is the surviving entity of such merger and/or consolidation.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments and other governmental
charges in respect of obligations that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and pension
or other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments or awards that do not
constitute an Event of Default under clause (k) of Article VII; and
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not (i) materially interfere with the ordinary
conduct of business of the Borrower or any Subsidiary and (ii) individually
or in the aggregate have a Material Adverse Effect;
"Permitted Receivables Financing" means (i) any customary "factoring"
program which involves the transfer without recourse (other than customary
limited recourse, if any) of accounts receivable and related assets and rights
and (ii) any other customary program for financing based solely on the grant of
security interests on accounts receivable (and the proceeds thereof and related
agreements and security customary for accounts receivable financings) of the
Borrower and its Subsidiaries and which involves the transfer without recourse
(other than customary limited recourse) of such accounts receivable to a
Permitted Receivables Vehicle and transfers of interests in such accounts
receivable to the parties providing such financing, so long as, solely in the
case of a program described under the preceding clause (ii): (a) such program is
intended by the parties thereto to be treated (whether or not such treatment is
ultimately disallowed) as an "off balance sheet" transaction and (b) all cash
advances to Permitted Receivables Vehicles pursuant to all such programs from
the Persons providing such financings shall not exceed an amount which is equal
to 75% of the Borrower's Consolidated EBITDA for the period of four consecutive
fiscal quarters of the Borrower most recently ended, as reported as at the end
of each fiscal quarter.
14
"Permitted Receivables Vehicle" means Lexmark Receivables Corporation, a
Delaware corporation, or any other Person established as a "bankruptcy remote"
Subsidiary (whether direct or indirect) of the Borrower for the purpose of
acquiring accounts receivable under any Permitted Receivables Financing.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Proposed New Lender" is defined in Section 2.20.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Statutory Reserve Rate" means, with respect to any currency, a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve, liquid asset, fees or similar requirements (including any marginal,
special, emergency or supplemental reserves or other requirements) established
by any central bank, monetary authority, the Board, the Financial Services
Authority, the European Central Bank or other Governmental Authority for any
category of deposits or liabilities customarily used to fund loans in such
currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of Dollar denominated Loans, include
those imposed pursuant to Regulation D of the Board.
15
Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset
or similar requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender under any
applicable law, rule or regulation, including Regulation D. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve, liquid asset or similar requirement.
"Subordinated Debt" means unsecured Indebtedness of the Borrower or any of
its Subsidiaries that is expressly subordinated and made junior to the payment
and performance in full in cash of the Obligations, and evidenced as such by a
written instrument containing such subordination provisions.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, the borrowing of Loans,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
16
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
17
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower in Agreed
Currencies from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's Revolving Credit
Exposure exceeding the Dollar Amount of such Lender's Commitment, (b) the sum of
the total Revolving Credit Exposures exceeding the Aggregate Commitment or (c)
subject to Section 2.04, the sum of the total Revolving Credit Exposures
denominated in Foreign Currencies exceeding the Foreign Currency Sublimit.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
in accordance with their respective Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower
may request in accordance herewith; provided that each ABR Loan shall
only be made in Dollars. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurocurrency Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not
less than $1,000,000 (or the Approximate Equivalent Amount of each
such amount if such Borrowing is denominated in a Foreign Currency).
At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $1,000,000; provided that an ABR
Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the Aggregate Commitment or that is required
to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(e). Each Swingline Loan shall be in an amount that is an
integral multiple of $1,000,000 and not less than $1,000,000.
Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a
total of twelve (12) Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
18
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than 11:00
a.m., New York City time, three Business Days (in the case of a Eurocurrency
Borrowing denominated in Dollars) or four Business Days (in the case of a
Eurocurrency Borrowing denominated in a Foreign Currency), in each case before
the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable subject to Section 2.21 and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the Agreed Currency
and initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent
will determine the Dollar Amount of:
(a) each Eurocurrency Borrowing as of the date three Business
Days prior to the date of such Borrowing or, if applicable, date of
conversion/continuation of any Borrowing as a Eurocurrency Borrowing,
(b) the LC Exposure as of the date of each request for the
issuance, amendment, renewal or extension of any Letter of Credit, and
19
(c) all outstanding Credit Events on and as of the last Business
Day of each calendar month and, during the continuation of an Event of
Default, on any other Business Day elected by the Administrative Agent
in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent determines Dollar Amounts
as described in the preceding clauses (a), (b) and (c) is herein described as a
"Computation Date" with respect to each Credit Event for which a Dollar Amount
is determined on or as of such day.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans in Dollars to
the Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000
or (ii) the Dollar Amount of the total Revolving Credit Exposures exceeding the
Aggregate Commitment; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 2:00 p.m., New York City time, on the day of
a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and
amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from
the Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit
account of the Borrower with the Swingline Lender (or, in the case of
a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank) by 4:00 p.m., New York City time, on the requested date
of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on
any Business Day require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in
which Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to
pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the
20
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit denominated in Agreed Currencies for its own account or the account of
one or more Subsidiaries, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the Agreed
Currency applicable thereto, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the Dollar Amount of the
LC Exposure shall not exceed $50,000,000, (ii) the total Revolving
Credit Exposures shall not exceed the Aggregate Commitment and (iii)
subject to Section 2.04, the Dollar Amount of the total Revolving
Credit Exposures denominated in Foreign Currencies shall not exceed
the Foreign Currency Sublimit.
21
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such renewal
or extension) and (ii) the date that is five Business Days prior to
the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate Dollar Amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the
Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. 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 Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent
in Dollars the Dollar Amount equal to such LC Disbursement, calculated
as of the date the Issuing Bank made such LC Disbursement (or if the
Issuing Bank shall so elect in its sole discretion by notice to the
Borrower, in such other Agreed Currency which was paid by the Issuing
Bank pursuant to such LC Disbursement in an amount equal to such LC
Disbursement) not later than 2:00 p.m., Local Time, on the date that
such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Local Time, on
such date, or, if such notice has not been received by the Borrower
prior to such time on such date, then not later than 2:00 p.m., Local
Time, on (i) the Business Day that the Borrower receives such notice,
if such notice is received prior to 10:00 a.m., Local Time, on the day
of receipt, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt; provided that, subject to
the conditions to borrowing set forth herein, such payment shall,
automatically and without any notice, be financed with an ABR
Revolving Borrowing (or, if so requested by the Borrower, a Swingline
Loan) in an equivalent Dollar Amount of such LC Disbursement and the
Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan.
If the Borrower fails to make such payment when due and, for any
reason, the applicable Lender(s) are unable to make or have no
obligation to make the ABR Revolving Loan or Swingline Loan (as
applicable) contemplated in the previous sentence, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.07 with respect to Loans made
22
by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it
from the Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank
or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or
a Swingline Loan as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement. If the Borrower's reimbursement of, or obligation to
reimburse, any amounts in any Foreign Currency would subject the
Administrative Agent, the Issuing Bank or any Lender to any stamp
duty, ad valorem charge or similar tax that would not be payable if
such reimbursement were made or required to be made in Dollars, the
Borrower shall, at its option, either (x) pay the amount of any such
tax requested by the Administrative Agent, the Issuing Bank or the
relevant Lender or (y) reimburse each LC Disbursement made in such
Foreign Currency in Dollars, in an amount equal to the Equivalent
Amount, calculated using the applicable exchange rates, on the date
such LC Disbursement is made, of such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement,
or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, (iv)
whether the account party in respect of such LC Disbursement is the
Borrower or any Subsidiary or (v) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent,
the Lenders nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to in the preceding sentence), or
any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating
to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the
Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of
the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such
23
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, the 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.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing
Bank shall promptly notify the Administrative Agent and the Borrower
by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the
date that the Borrower reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans (or in the case such
LC Disbursement is denominated in a Foreign Currency, at the Overnight
Foreign Currency Rate for such Agreed Currency plus the then effective
Applicable Rate with respect to Eurocurrency Revolving Loans);
provided that, if the Issuing Bank provides timely notice to the
Borrower of such reimbursement obligation as specified by paragraph
(e) of this Section and the Borrower fails to reimburse such LC
Disbursement when due pursuant to such paragraph (e), then Section
2.13(d) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the Issuing Bank, except that interest accrued
on and after the date of payment by any Lender pursuant to paragraph
(e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein
to the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
24
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of
the Lenders, an amount in cash equal to the Dollar Amount of the LC
Exposure as of such date plus any accrued and unpaid interest thereon;
provided that (i) the portions of such amount attributable to undrawn
Foreign Currency Letters of Credit or LC Disbursements in a Foreign
Currency that the Borrower is not late in reimbursing shall be
deposited in the applicable Foreign Currencies in the actual amounts
of such undrawn Letters of Credit and LC Disbursements and (ii) the
obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. For the purposes of
this paragraph, the Foreign Currency LC Exposure shall be calculated
using the applicable exchange rates of the Administrative Agent on the
date notice demanding cash collateralization is delivered to the
Borrower. The Borrower also shall deposit cash collateral pursuant to
this paragraph as and to the extent required by Section 2.11.2. Such
deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under
this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder
as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured
or waived.
(k) Conversion. In the event that the Loans become immediately
due and payable on any date pursuant to Article VII, all amounts (i)
that the Borrower is at the time or thereafter becomes required to
reimburse or otherwise pay to the Administrative Agent in respect of
LC Disbursements made under any Foreign Currency Letter of Credit
(other than amounts in respect of which the Borrower has deposited
cash collateral pursuant to paragraph (j) above, if such cash
collateral was deposited in the applicable Foreign Currency to the
extent so deposited or applied), (ii) that the Lenders are at the time
or thereafter become required to pay to the Administrative Agent and
the Administrative Agent is at the time or thereafter becomes required
to distribute to the Issuing Bank pursuant to paragraph (e) of this
Section in respect of unreimbursed LC Disbursements made under any
Foreign Currency Letter of Credit and (iii) of each Lender's
participation in any Foreign Currency Letter of Credit under which an
LC Disbursement has been made shall, automatically and with no further
action required, be
25
converted into the Dollar Amount, calculated using the Administrative
Agent's currency exchange rates on such date (or in the case of any LC
Disbursement made after such date, on the date such LC Disbursement is
made), of such amounts. On and after such conversion, all amounts
accruing and owed to the Administrative Agent, the Issuing Bank or any
Lender in respect of the obligations described in this paragraph shall
accrue and be payable in Dollars at the rates otherwise applicable
hereunder.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds (i) in the case of Loans denominated in Dollars, by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders and (ii) in
the case of each Loan denominated in a Foreign Currency, by 12:00 noon, Local
Time, in the city of the Administrative Agent's Eurocurrency Payment Office for
such currency and at such Eurocurrency Payment Office for such currency;
provided that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to the equivalent Borrowing. If
such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing.
If any interest is paid by the Borrower pursuant to this Section 2.07
with respect to any amount funded by the Administrative Agent pursuant
to this Section 2.07, the Borrower shall not be required to pay
interest on such amount pursuant to this Agreement to the relevant
non-funding Lender in respect of such period
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect
26
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03
if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to
the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest
Period (i) in the case of a Borrowing denominated in Dollars, such
Borrowing shall be converted to an ABR Borrowing and (ii) in the case
of a Borrowing denominated in a Foreign Currency, such Borrowing shall
automatically continue as a Eurocurrency Borrowing in the same Agreed
Currency with an Interest Period of one month unless (x) such
Eurocurrency Borrowing is or was repaid in accordance with Section 2.7
or (y) the Borrower shall have given the Administrative
27
Agent an Interest Election Request requesting that, at the end of such Interest
Period, such Eurocurrency Borrowing continue as a Eurocurrency Borrowing for the
same or another Interest Period. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii)
unless repaid, each Eurocurrency Revolving Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $1,000,000 and (ii) the Borrower shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11,
the Dollar Amount of the sum of the Revolving Credit Exposures would
exceed the Aggregate Commitment.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date
of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Borrower pursuant to this Section shall
be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to
the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent. Each reduction of the Commitments
shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of the Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made;
provided that on each date that a Revolving Borrowing is made, the Borrower
shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
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(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class,
Agreed Currency and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of
the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance
with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its
registered and permitted assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.11. Prepayment of Loans.
SECTION 2.11.1. Voluntary Prepayments.
(a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part, subject to prior
notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurocurrency Revolving Borrowing, not
later than 11:00 a.m., New York City time, at least one Business Day
before the date of prepayment, (ii) in the case of prepayment of an
ABR Revolving Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New
York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated
by Section 2.09, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.09.
Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing
shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a
29
Revolving Borrowing shall be applied ratably to the Loans included in
the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
SECTION 2.11.2. Mandatory Prepayments.
If at any time, (i) other than as a result of fluctuations in currency
exchange rates, the sum of the aggregate principal Dollar Amount of all of the
Revolving Credit Exposures (calculated, with respect to those Credit Events
denominated in Foreign Currencies, as of the most recent Computation Date with
respect to each such Credit Event) exceeds the Aggregate Commitment and (ii)
solely as a result of fluctuations in currency exchange rates, the sum of the
aggregate principal Dollar Amount of all of the Revolving Credit Exposures (as
so calculated) exceeds 5% of the Foreign Currency Sublimit, the Borrower shall
immediately repay Borrowings and, if no Borrowings are then outstanding, cash
collateralize LC Disbursements in an account with the Administrative Agent
pursuant to Section 2.05(j), in an aggregate principal amount sufficient to
eliminate any such excess.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily Dollar Amount of the Commitment of such Lender
(whether used or unused) during the period from and including the Effective Date
to but excluding the date on which such Commitment terminates; provided that, if
such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily Dollar
Amount of such Lender's Revolving Credit Exposure from and including the date on
which its Commitment terminates to but excluding the date on which such Lender
ceases to have any Revolving Credit Exposure. Accrued facility fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any facility fees
accruing after the date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall
accrue at the same Applicable Rate used to determine the interest
rate applicable to Eurocurrency Revolving Loans on the average
daily Dollar Amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any
LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate of 0.10% per annum on the average daily
Dollar Amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later
of the date of termination of the Commitments and the date on
which there ceases to be any LC Exposure, as well as the Issuing
Bank's reasonable and customary fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and
fronting fees accrued through and
30
including the last day of March, June, September and December of each
year shall be payable on the third Business Day following such last
day, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on
which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative
Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in
the case of facility fees and participation fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at the Alternate Base Rate. Each Swingline Loan shall bear
interest at the rate offered by the Swingline Lender and accepted by the
Borrower.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal
to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest (i) computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based
on the Prime Rate shall be computed on the basis of a year of 365
31
days (or 366 days in a leap year), (ii) for Swingline Loans shall be
computed on the basis of a year of 365 days (or 366 days in a leap
year) and (iii) for Borrowings denominated in British Pounds Sterling
shall be computed on the basis of a year of 365 days, and in each case
shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base
Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to
such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or of maintaining its
obligation to make any such Loan (including, without limitation, pursuant to any
conversion of any Borrowing denominated in an Agreed Currency into a Borrowing
denominated in any other Agreed Currency) or to increase the cost to such Lender
or the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit (including, without limitation, pursuant to any conversion of any
Borrowing
32
denominated in an Agreed Currency into a Borrowing denominated in any
other Agreed Currency) or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder, whether of
principal, interest or otherwise (including, without limitation,
pursuant to any conversion of any Borrowing denominated in an Agreed
Currency into a Borrowingdenominated in any other Agreed Currency),
then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional
costs incurred or reduction suffered; provided, however that at such
time such Lender or Issuing Bank shall be generally assessing such
amounts on a non-discriminatory basis against borrowers under
agreements having provisions similar to this Section 2.15.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's
capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of this Agreement or the
Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered;
provided, however that at such time such Lender or Issuing Bank shall
be generally assessing such amounts on a non-discriminatory basis
against borrowers under agreements having provisions similar to this
Section 2.15.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the
Issuing Bank or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or the Issuing Bank pursuant to this
Section for any increased costs or reductions incurred more than 60
days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or the Issuing
Bank's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 60-day period referred to above
shall be extended to include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan other than on the last day of an Interest
Period applicable
33
thereto (including as a result of an Event of Default or as a result of any
prepayment pursuant to Section 2.11), (b) the conversion of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto, (c)
the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.11(b) and is revoked in accordance
therewith) or (d) the assignment of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss and any reasonable cost and expense
attributable to such event. Such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for
deposits in the relevant currency of a comparable amount and period from other
banks in the eurocurrency market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 30 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank, as
the case may be, on or with respect to any payment by or on account of
any obligation of the Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower
34
by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in good
faith, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section
2.17, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower,
upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it
deems confidential) to the Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.15, 2.16 or
2.17, or otherwise) prior to (i) in the case of payments denominated
in Dollars, 2:00 p.m., Local Time and (ii) in the case of payments
denominated in a Foreign Currency, 2:00 p.m., Local Time, in the city
of the Administrative Agent's Eurocurrency Payment Office for such
currency, in each case on the date when due, in immediately available
funds, without set-off or counterclaim. All such payments shall be
made (i) in the same currency in which the applicable Credit Event was
made (or where such currency has been converted to euro, in euro) and
(ii) to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or, in the case of a Borrowing
denominated in a Foreign Currency, the Administrative Agent's
Eurocurrency Payment Office, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and
except that payments
35
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments denominated in the same currency received
by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the
period of such extension. Notwithstanding the foregoing provisions of
this Section, if, after the making of any Credit Event in any Foreign
Currency, currency control or exchange regulations are imposed in the
country which issues such currency with the result that the type of
currency in which the Credit Event was made (the "Original Currency")
no longer exists or the Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in such Original
Currency, then all payments to be made by the Borrower hereunder in
such currency shall instead be made when due in Dollars in an amount
equal to the Dollar Amount (as of the date of repayment) of such
payment due, it being the intention of the parties hereto that the
Borrower takes all risks of the imposition of any such currency
control or exchange regulations.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving
Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their
respective Revolving Loans and participations in LC Disbursements and
Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the
Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against the
36
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the
case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b),
2.18(d) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the reasonable judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section
9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent (and if a Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC
Disbursements and Swingline
37
Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15
or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.20. Increase of Commitments. At any time, the Borrower may
request that Aggregate Commitment be increased; provided that, without the prior
written consent of all of the Lenders, the Aggregate Commitment shall at no time
exceed $500,000,000. Such request shall be made in a written notice given to the
Administrative Agent and the Lenders by the Borrower not less than ten (10)
Business Days prior to the proposed effective date of such increase, which
notice (a "Commitment Increase Notice") shall specify the amount of the proposed
increase in the Aggregate Commitment and the proposed effective date of such
increase. The Borrower may notify the Administrative Agent of any financial
institution that shall have agreed to become a "Lender" party hereto (a
"Proposed New Lender") in connection with the Commitment Increase Notice and any
Proposed New Lender shall be consented to by the Administrative Agent and the
Issuing Bank (which consent shall not be unreasonably withheld or delayed). The
Administrative Agent shall notify the Borrower and the Lenders on or before the
Business Day immediately prior to the proposed effective date of the amount of
each Lender's and Proposed New Lender's Commitment (the "Effective Commitment
Amount") and the amount of the Aggregate Commitment, which amount shall be
effective on the following Business Day. Any increase in the Aggregate
Commitment shall be subject to the following conditions precedent: (A) as of the
date of the Commitment Increase Notice and as of the proposed effective date of
the increase in the Aggregate Commitment, all representations and warranties
under Article III shall be true and correct in all material respects as though
made on such date (except for representations and warranties for which
exceptions thereto have been disclosed in writing to the Administrative Agent
and which have been approved in writing by the Required Lenders or expressly
relate to an earlier specified date) and no event shall have occurred and then
be continuing which constitutes a Default or Event of Default, (B) the Borrower,
the Administrative Agent and each Proposed New Lender or Lender that shall have
agreed to provide a "Commitment" in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit B hereto, (C) counsel for the Borrower
shall have provided to the Administrative Agent supplemental opinions in form
and substance reasonably satisfactory to the Administrative Agent, (D) the
Borrower and the Proposed New Lender shall otherwise have executed and delivered
such other instruments and documents as may be required under Article IV or that
the Administrative Agent shall have reasonably requested in connection with such
increase and (E) the Administrative Agent shall have administered the
reallocation of the Revolving Credit Exposures on the effective date of such
increase ratably among the Lenders (including new Lenders) after giving effect
to such increase. The Borrower hereby agrees to compensate each Lender for all
losses, expenses and liabilities incurred by such Lender, if any, in connection
with the sale and assignment of any Eurocurrency Loan hereunder on the terms and
in the manner as set forth in Section 2.16 hereof. Upon satisfaction of the
conditions precedent to any increase in the Aggregate Commitment, the
Administrative Agent shall promptly advise the Borrower and
38
each Lender of the effective date of such increase. Upon the effective date of
any increase in the Aggregate Commitment that is supported by a Proposed New
Lender, such Proposed New Lender shall be a party to this Agreement as a Lender
and shall have the rights and obligations of a Lender hereunder. Nothing
contained herein shall constitute, or otherwise be deemed to be, a commitment on
the part of any Lender to increase its Commitment at any time.
SECTION 2.21. Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II and Article IV with respect to any Credit
Event to be effected in any Foreign Currency, if (i) there shall occur on or
prior to the date of such Credit Event any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative
Agent, the Issuing Bank (if such Credit Event is a Letter of Credit) or the
Required Lenders make it impracticable for the Eurocurrency Borrowings or
Letters of Credit comprising such Credit Event to be denominated in the Agreed
Currency specified by the Borrower or (ii) an Equivalent Amount of such currency
is not readily calculable, then the Administrative Agent shall forthwith give
notice thereof to the Borrower, the Lenders and, if such Credit Event is a
Letter of Credit, the Issuing Bank at least (to the extent practicable) two
Business Days prior to such Credit Event, and such Credit Events shall not be
denominated in such Agreed Currency but shall, except as otherwise set forth in
Section 2.07, be made on the date of such Credit Event in Dollars, (a) if such
Credit Event is a Borrowing, in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related Credit
Event Request or Interest Election Request, as the case may be, as ABR Loans,
unless the Borrower notifies the Administrative Agent at least one Business Day
before such date that (i) it elects not to borrow on such date or (ii) it elects
to borrow on such date in a different Agreed Currency, as the case may be, in
which the denomination of such Loans would in the reasonable opinion of the
Administrative Agent and the Required Lenders be practicable and in an aggregate
principal amount equal to the Dollar Amount of the aggregate principal amount
specified in the related Credit Event Request or Interest Election Request, as
the case may be or (b) if such Credit Event is a Letter of Credit, in a face
amount equal to the Dollar Amount of the face amount specified in the related
request or application for such Letter of Credit, unless the Borrower notifies
the Administrative Agent at least one Business Day before such date that (i) it
elects not to request the issuance of such Letter of Credit on such date or (ii)
it elects to have such Letter of Credit issued on such date in a different
Agreed Currency, as the case may be, in which the denomination of such Letter of
Credit would in the reasonable opinion of the Issuing Bank, the Administrative
Agent and the Required Lenders be practicable and in a face amount equal to the
Dollar Amount of the face amount specified in the related request or application
for such Letter of Credit, as the case may be.
SECTION 2.22. Judgment Currency. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from the Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") 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 Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main New York City office on the Business Day preceding that on which
final, non-appealable judgment is given. The obligations of the Borrower in
respect of any sum due to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency other than
39
the specified currency, be discharged only to the extent that on the Business
Day following receipt by such Lender or the Administrative Agent (as the case
may be) of any sum adjudged to be so due in such other currency such Lender or
the Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, the Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 2.18, such Lender or the Administrative Agent, as
the case may be, agrees to remit such excess to the Borrower.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required. Schedule 3.01 sets forth as of the Effective Date a true and complete
list of each Subsidiary of the Borrower, together with the jurisdiction of
incorporation/formation of each such Subsidiary, and an indication as to whether
such Subsidiary is a Material Worldwide Subsidiary.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority and (c) will not violate or result in a default under any material
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or
40
its assets, or give rise to a right thereunder to require any payment to be made
by the Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2003 reported on by PricewatershouseCoopers,
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended September 30, 2004, certified by a
Financial Officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since September 30, 2004, there has been no material adverse
change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for defects in title that are not
reasonably expected to have a Material Adverse Effect. There are no Liens on any
of the real or personal properties of the Borrower or any Subsidiary except for
Liens permitted by Section 6.02.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) Except for the
Disclosed Matters, there are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither
the Borrower nor any of its Subsidiaries (i) has failed to comply with
any applicable Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any applicable
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
41
SECTION 3.07. Compliance with Laws. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08. Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. Neither the Information Memorandum nor any of the
Loan Documents contain any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any
Loan have been used or will be used, whether directly or indirectly, for any
purpose that entails a violation of any of Regulations T, U and X of the Board.
SECTION 3.13. No Default. No Default or Event of Default has occurred and
is continuing.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii)
42
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the
Borrower, in form and substance satisfactory to the Administrative
Agent and its counsel.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request reasonably in advance of the Effective Date
relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and
its counsel and as further described in the list of closing documents
attached as Exhibit D.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the Borrower, confirming that, as of the
Effective Date, (i) the representations and warranties of the Borrower
set forth in this Agreement are true and correct and (ii) no Default
has occurred or is continuing.
(e) The Administrative Agent shall have received evidence
satisfactory to it that all of the Borrower's existing credit
facilities shall have been cancelled and terminated and all
indebtedness thereunder shall have been fully repaid (except to the
extent being so repaid with the initial Revolving Credit Loans).
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on the Effective Date (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth
in this Agreement (other than the representations contained in
Sections 3.04(b), 3.06(a) and those that expressly relate to an
earlier specified date) shall be true and correct on and as
43
of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other Information.
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of
the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by PricewatershouseCoopers, LLP or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations and cash flows as
of the end of and for such fiscal quarter and the then elapsed portion
of the fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably
44
detailed calculations demonstrating compliance with Sections 6.01 and
6.06 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of
all S-3 registration statements (other than the exhibits thereto) and
reports on Forms 10-K and 10-Q filed by the Borrower or any Subsidiary
with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed
by the Borrower to its stockholders generally, as the case may be;
(e) promptly after ▇▇▇▇▇'▇ or S&P shall have announced a change
in the rating established or deemed to have been established for the
Index Debt, written notice of such rating change; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against the
Borrower or any Subsidiary thereof that, if not cured and if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries
in an aggregate amount exceeding $150,000,000; and
(d) any setoff, claims (including, with respect to real estate,
environmental claims), withholdings or other defenses to which any of
the Borrower's assets are subject if any such setoff, claim,
withholding or other defense could reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03; provided
further that nothing in this Section 5.03 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such
45
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that does not in the aggregate have a Material Adverse
Effect.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03; provided that nothing in this Section
5.05 shall prevent the Borrower from discontinuing the operation and maintenance
of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that does not in the aggregate have a Material Adverse
Effect.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested; provided that the Borrower and its
Subsidiaries may place reasonable limits on access to information which is
proprietary or constitutes trade secrets and need not disclose any information
if such disclosure would be prohibited by a confidentiality agreement entered
into by the Borrower or such Subsidiary on an arm's length basis and in good
faith.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property (including without
limitation Environmental Laws), except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only
to repay existing Indebtedness, finance the working capital needs, and for
general corporate purposes, of the Borrower and its Subsidiaries.
46
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) the Obligations;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (together with any premium paid thereon and reasonable costs
and expenses incurred with respect thereto);
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary as an account
party in respect of trade letters of credit;
(f) the Subordinated Debt, including without limitation, the
Indebtedness of any Permitted Receivables Vehicle to the Borrower
consisting of the deferred purchase price of such receivables sold
pursuant to the Permitted Receivables Financing and evidenced by a
deferred purchase price promissory note from such Permitted
Receivables Vehicle to the Borrower;
(g) unsecured Indebtedness of the Subsidiaries of the Borrower
which is not otherwise permitted hereunder; provided that the
aggregate amount of such Indebtedness shall not exceed at any time an
amount which is equal to 15% of Consolidated Total Assets at any time;
(h) secured Indebtedness of the Borrower or any of its
Subsidiaries which is not otherwise permitted hereunder in an
aggregate principal amount not exceeding 15% of Consolidated Total
Assets at any time outstanding;
(i) unsecured Indebtedness of the Borrower; provided, however,
both before and after giving effect to the incurrence of such
Indebtedness the Borrower is in compliance with its covenants
contained in this Agreement;
47
(j) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case in the ordinary
course of business; and
(k) Indebtedness in respect of the Permitted Receivables
Financing.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(d) Liens in favor of the Borrower on all or part of the assets
of Subsidiaries of the Borrower securing Indebtedness owing by
Subsidiaries of the Borrower to the Borrower;
(e) Liens on properties in respect of judgments or awards that
have been in force for less than the applicable period for taking an
appeal so long as execution is not levied thereunder or in respect of
which the Borrower or such Subsidiary shall at the time in good faith
be prosecuting an appeal or proceedings for review and in respect of
which a stay of execution shall have been obtained pending such appeal
or review;
(f) Liens to secure Indebtedness permitted by Section 6.01(h);
(g) Liens in favor of customs and revenue authorities arising in
the ordinary course of business and as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(h) Liens that may be deemed to arise pursuant to the Permitted
Receivables Financing;
48
(i) Liens consisting of the interests of a Person under an
operating lease;
(j) Liens consisting of any rights retained by a seller or
shipper of goods in such goods prior to receipt of payment therefor
during the shipment of such goods from the seller to the buyer (but
which rights are terminated upon the buyer accepting receipt of such
goods);
(k) to the extent the transferring of an interest in an equipment
lease or service or use agreement is considered a Lien, Liens arising
in connection with the Borrower's managed print services or equipment
leasing programs pursuant to which the Borrower transfers certain of
its interests under specified equipment leases or service or use
agreements to an unaffiliated Person but retains certain rights to get
paid for services to be provided by the Borrower to the lessee
thereunder for supplies to be used in and servicing of such equipment;
(l) Liens arising in the ordinary course of business which (1) do
not secure Indebtedness, (2) do not secure obligations in an aggregate
amount exceeding 5% of Consolidated Total Assets and (3) do not in the
aggregate materially detract from the value of the assets of the
Borrower and its Subsidiaries, taken as a whole, or materially impair
the use thereof in the operation of their respective businesses;
(m) purchase money Liens on any real property or equipment
acquired in the ordinary course of business to secure the purchase
price thereof so long as such Liens do not apply to any other property
or assets of the Borrower or any Subsidiary;
(n) any financing statement reflecting a security interest that
would otherwise be permitted under this Section 6.02;
(o) the rights of consignors of goods, whether or not perfected;
and
(p) Liens given in lieu of surety, stay or appeal bonds or
deposits required by law or any governmental regulations, court order
or judgment as a condition to the transaction of business or the
exercise of any right, privilege or license.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will not
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary/Person may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease
or otherwise dispose of its assets (including the stock of another entity) to
the Borrower or to another Subsidiary (as the case may be) and (iv) any
Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a
49
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in businesses other than primarily in those
businesses now conducted by them and in related businesses and those
businesses permitted to be acquired pursuant to Section 6.04.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock or evidences of
indebtedness of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except
(a) Permitted Acquisitions and
(b) any other investment, loan or advance so long as, either
before or after any such investment, loan or advance is made or
remains outstanding, no Default or Event of Default has occurred and
is continuing or would exist as a result thereof (including without
limitation any Default or Event of Default which would arise as a
result of an acquisition which does not comply with the requirements
of a Permitted Acquisition).
SECTION 6.05. Restrictive Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
the foregoing shall not apply to (i) restrictions and conditions imposed by law
or by this Agreement, (ii) restrictions and conditions existing on the date
hereof identified on Schedule 6.05 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) restrictions on specific assets which
assets are the subject of purchase money security interests to the extent
permitted under Section 6.02, (v) customary anti-assignment provisions contained
in leases and licensing agreements entered into by the Borrower or any
Subsidiary in the ordinary course of business, (vi) restrictions and conditions
imposed by any Person providing the Indebtedness permitted by Section 6.01(h) if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness, (vii) restrictions and conditions imposed under a Permitted
Receivables Financing, (viii) any restrictions on the ability of any Subsidiary
to make or repay loans or advances to the Borrower or any other Subsidiary or to
transfer property to the Borrower or any Subsidiary or to guaranty Indebtedness
of the Borrower or any Subsidiary contained in the subordination provisions of
any Subordinated Debt permitted hereunder and (ix) restrictions and conditions
existing in any Indebtedness of any Person that becomes a Subsidiary after the
Effective Date, provided that (A) such Indebtedness exists at the time such
Person
50
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (B) the aggregate principal amount of
all Indebtedness described in this clause (ix) shall not exceed $25,000,000 at
any time outstanding.
SECTION 6.06. Financial Covenants.
(a) Minimum Interest Coverage Ratio. The Borrower will not permit
the ratio, determined as of the end of each of its fiscal quarters
ending on and after December 31, 2004 for the period of 4 consecutive
fiscal quarters ending with the end of such fiscal quarter, of (i)
Consolidated EBITDA to (ii) Consolidated Interest Expense, all
calculated for the Borrower and its Subsidiaries on a consolidated
basis, to be less than 4.0 to 1.0.
(b) Maximum Leverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters ending
on and after December 31, 2004, of (i) Consolidated Total Indebtedness
to (ii) Consolidated EBITDA for the period of 4 consecutive fiscal
quarters ending with the end of such fiscal quarter, all calculated
for the Borrower and its Subsidiaries on a consolidated basis, to be
greater than 3.0 to 1.0.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection
with this Agreement or any other Loan Document or any amendment or
modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with
respect to the Borrower's legal existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this
51
Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which notice
will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
of principal of any Material Indebtedness at the scheduled due date
thereof and such failure shall continue beyond any applicable grace
period;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (assuming the giving of appropriate notice if
required under the terms of such Material Indebtedness) the holder or
holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Material Worldwide Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Worldwide Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any Material Worldwide Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Worldwide Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any Material Worldwide Subsidiary shall admit
in writing its inability to pay, or fail generally to pay, its debts
as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $100,000,000 which is not otherwise
covered by insurance shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 45 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
52
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any
time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due
and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder and under
the other Loan Documents, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event
with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower
accrued hereunder and under the other Loan Documents, shall
automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or
53
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (such consent not to be unreasonably withheld), to appoint a successor;
provided that no such consent of the Borrower shall be required in the event a
Default or Event of Default has occurred and is continuing. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its
54
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
None of the Lenders, if any, identified in this Agreement as a
Co-Syndication Agent or Co-Documentation Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to the
relevant Lenders in their capacity as Co-Syndication Agents or Co-Documentation
Agents as it makes with respect to the Administrative Agent in the preceding
paragraph.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇, Assistant
Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
N.A., Loan and Agency Services Group, 1 Bank One Plaza IL 1-[____],
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
55
Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan
Chase Bank, N.A., 1 Bank One Plaza IL 1-[____], ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A.,
Global Trade Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank,
N.A., Loan and Agency Services Group, 1 Bank One Plaza IL 1-[____],
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (312)
385-7095); and
(v) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved
by it; provided that approval of such procedures may be limited to
particular notices or communications.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the
consent
56
of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, or (v) change any
of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the
case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of one firm (and, in addition to such firm, any local counsel
engaged in each relevant jurisdiction by such firm) as counsel for the
Administrative Agent, one firm as counsel for the Issuing Bank (and, in addition
to such firm, any local counsel engaged in each relevant jurisdiction by such
firm) and one additional firm (and, in addition to such firm, any local counsel
engaged in each relevant jurisdiction by such firm) as counsel for the Lenders,
in connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by
the Issuing Bank to honor a demand for payment
57
under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities
or related expenses are determined to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative
Agent, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative
Agent, the Issuing Bank or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any
Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 15 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time
58
owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund or, if an Event of Default has occurred and is
continuing, any other assignee;
(B) the Administrative Agent; and
(C) the Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class, the amount
of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, provided
that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of all
the assigning Lender's rights and obligations in respect of one Class
of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by
such
59
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank
and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register; provided
that if either the assigning Lender or the assignee shall have failed
to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the
Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any
60
amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.18(c) as though it were
a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would
have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any
pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall
61
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and
of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect
any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating
to this Agreement against the Borrower or its properties in the courts
of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement in any New York state or Federal court. Each of the parties
hereto hereby irrevocably waives, to
62
the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) 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,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in
63
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Unless specifically prohibited by applicable law or
court order, each of the Lenders and the Administrative Agent shall, prior to
disclosure thereof, make reasonable efforts to notify the Borrower of any
request for disclosure of any such non-public information by any governmental
agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Lender by such governmental
agency) or pursuant to legal process.
SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.
[Signature Pages Follow]
64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
LEXMARK INTERNATIONAL, INC., as the Borrower:
By: /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer
Signature Page to Credit Agreement
Lexmark International, Inc.
JPMORGAN CHASE BANK, N.A., individually and as
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Signature Page to Credit Agreement
Lexmark International, Inc.
FLEET NATIONAL BANK, individually and as Co-
Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. Del ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. Del Vecchio
Title: Managing Director
Signature Page to Credit Agreement
Lexmark International, Inc.
CITIBANK, N.A., individually and as Co-Syndication
Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Signature Page to Credit Agreement
Lexmark International, Inc.
KEYBANK NATIONAL ASSOCIATION, individually
and as Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Credit Agreement
Lexmark International, Inc.
SUNTRUST BANK, individually and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: MANAGING DIRECTOR
Signature Page to Credit Agreement
Lexmark International, Inc.
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
Lexmark International, Inc.
BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Signature Page to Credit Agreement
Lexmark International, Inc.
BANK OF TOKYO-MITSUBISHI, LTD., as a Lender
By: /s/ Ro Toyoshimia
----------------------------
Name: Ro Toyoshimia
Title: Vice President
Signature Page to Credit Agreement
Lexmark International, Inc.