EXHIBIT 10.24
FIVE-YEAR REVOLVING LOAN CREDIT AGREEMENT
DATED AS OF JUNE 20, 2002
AMONG
VISTEON CORPORATION, AS BORROWER,
THE SEVERAL BANKS
FROM TIME TO TIME PARTIES HERETO,
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT,
AND
BANK OF AMERICA N.A.,
AS SYNDICATION AGENT
---------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. AND
BANC OF AMERICA SECURITIES, LLC,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.........................................................................................1
SECTION 2. THE LOANS..........................................................................................14
2.1 The Commitment; Termination Date; Increase in Commitments........................................14
2.2 Proceeds of Loans................................................................................15
2.3 Facility Fee; Utilization Fee....................................................................15
2.4 ▇▇▇▇-to-Market...................................................................................16
2.5 Optional Termination or Reduction of Commitments.................................................16
2.6 Notice of Borrowing; Procedure...................................................................17
2.7 CAF Advances.....................................................................................18
2.8 Procedure for CAF Advance Borrowing..............................................................18
2.9 CAF Advance Payments.............................................................................22
2.10 Certain Restrictions.............................................................................22
2.11 Promise to Pay CAF Advances; Evidence of CAF Advances............................................22
2.12 Extension of Term of Loans; Conversion of Loans..................................................23
2.13 Register.........................................................................................25
2.14 Interest Rates...................................................................................26
2.15 Interest Payment Dates...........................................................................26
2.16 Overdue Principal and Interest...................................................................27
2.17 Dates for Payment or Optional Prepayment of Principal............................................27
2.18 Optional Prepayment on Other Dates; Reimbursement for Certain Costs..............................28
2.19 Method of Payment................................................................................28
2.20 Pro Rata Treatment and Payments..................................................................29
2.21 Limitation on Eurocurrency Tranches..............................................................30
2.22 Repayment of Bilateral Obligations; Termination of Bilateral Commitments.........................30
SECTION 3. LETTERS OF CREDIT..................................................................................30
3.1 L/C Commitment...................................................................................30
3.2 Procedure for Issuance of Letter of Credit.......................................................31
3.3 Fees and Other Charges...........................................................................31
3.4 L/C Participations...............................................................................31
3.5 Reimbursement Obligation of the Company or Affiliate.............................................32
3.6 Obligations Absolute.............................................................................33
3.7 Letter of Credit Payments........................................................................33
3.8 Applications.....................................................................................34
PAGE
SECTION 4. GUARANTEE OF LOANS TO AFFILIATES....................................................................34
SECTION 5. CONDITIONS TO LOANS, CAF ADVANCES AND LETTERS OF CREDIT.............................................35
5.1 Each Loan or CAF Advance to, or Letter of Credit Issued for the Account of, the Company or any
Affiliate......................................................................................35
5.2 First Loan or CAF Advance to, or Letter of Credit Issued for the Account of, the Company or any
Affiliate......................................................................................36
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................38
6.1 Corporate Authority of the Company, etc...........................................................38
6.2 Financial Statements..............................................................................38
6.3 Litigation........................................................................................39
6.4 Use of Proceeds...................................................................................39
6.5 Compliance with ERISA.............................................................................39
SECTION 7. COVENANTS...........................................................................................39
7.1 Reports; Certificate as to Default................................................................39
7.2 Further Information...............................................................................40
7.3 Liens.............................................................................................40
7.4 Sale-Leasebacks...................................................................................41
7.5 Mergers and Consolidations........................................................................41
7.6 Additional Covenants..............................................................................42
7.7 ERISA.............................................................................................42
7.8 Notification......................................................................................42
7.9 Consolidated Leverage Ratio.......................................................................43
SECTION 8. DEFAULT.............................................................................................43
8.1 Defaults Relating to the Company..................................................................43
8.2 Defaults Relating to Affiliates...................................................................44
8.3 Defaults Relating to Bankruptcy of the Company....................................................46
8.4 Cash Collateralization of Outstanding Letters of Credit...........................................46
SECTION 9. ASSIGNMENT; PARTICIPATIONS..........................................................................47
9.1 Assignment........................................................................................47
9.2 Participation.....................................................................................48
SECTION 10. CHANGE IN CIRCUMSTANCES............................................................................49
10.1 Basis for Determining Interest Rate Inadequate or Unfair.........................................49
10.2 Illegality.......................................................................................50
10.3 Increased Cost...................................................................................51
10.4 Withholding Taxes................................................................................54
10.5 Replacement of Banks.............................................................................56
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PAGE
SECTION 11. THE AGENTS.........................................................................................56
11.1 Appointment......................................................................................56
11.2 Delegation of Duties.............................................................................57
11.3 Exculpatory Provisions...........................................................................57
11.4 Reliance by Administrative Agent.................................................................57
11.5 Notice of Default................................................................................58
11.6 Non-Reliance on Agents and Other Banks...........................................................58
11.7 Indemnification..................................................................................58
11.8 Agent in Its Individual Capacity.................................................................59
11.9 Successor Administrative Agent...................................................................59
11.10 Syndication Agent...............................................................................60
SECTION 12. MISCELLANEOUS......................................................................................60
12.1 Notices..........................................................................................60
12.2 Term of Agreement................................................................................60
12.3 No Waivers.......................................................................................60
12.4 New York Law and Jurisdiction....................................................................61
12.5 Entire Agreement.................................................................................61
12.6 Payment of Certain Expenses......................................................................62
12.7 Judgment Currency................................................................................63
12.8 Changes, Waivers, etc.; Adjustments..............................................................63
12.9 Severability.....................................................................................64
12.10 Successors and Assigns..........................................................................64
12.11 Counterparts....................................................................................64
12.12 Third Party Beneficiaries.......................................................................65
12.13 Electronic Recording............................................................................65
12.14 Aggregation or Comparison of Amounts in Different Currencies; Calculation of Certain Fees.......65
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1
FIVE-YEAR REVOLVING LOAN CREDIT AGREEMENT
This FIVE-YEAR REVOLVING LOAN CREDIT AGREEMENT, dated as of June 20,
2002, is among
VISTEON CORPORATION, a Delaware corporation (the "Company"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Banks"), JPMORGAN CHASE BANK, a New York banking
corporation, as administrative agent (the "Administrative Agent"), and BANK OF
AMERICA N.A., as syndication agent (the "Syndication Agent").
The Company desires to obtain a five-year revolving credit facility for
itself and its Affiliates in the aggregate amount of U.S. $775,000,000 or the
Equivalent thereof (as hereinafter defined) at any one time outstanding, and the
Banks and Administrative Agent are willing to provide such revolving credit
facility and to make Loans to, and issue Letters of Credit for the account of,
the Company and the Affiliates, subject to the terms and conditions set forth
below.
SECTION 1. DEFINITIONS
The following terms, as used herein, have the following respective
meanings:
"Accession Memorandum" means a memorandum of an Affiliate substantially
in the form of Exhibit A hereto evidencing the Affiliate's agreement to be bound
by the terms of this Agreement; provided that such a memorandum shall contain
such changes or additional provisions as may be deemed necessary by mutual
agreement of the Administrative Agent, the Affiliate and the Company.
"Administrative Agent" has the meaning set forth in the preamble, it
being understood that matters concerning Foreign Currency Loans will be
administered by ▇.▇. ▇▇▇▇▇▇ Europe Limited and therefore all notices concerning
such Foreign Currency Loans will be required to be given at the Foreign Currency
Notice Office.
"Affected Foreign Currency" has the meaning set forth in Section 10.1.
"Affiliate" means any direct or indirect majority-owned subsidiary of
the Company and any partnership of which the Company or a direct or indirect
majority-owned subsidiary of the Company is a general or unlimited partner. For
purposes of this definition, "majority-owned" means ownership of more than 50%
of the capital stock of or other equity interest in, or more than 50% of the
voting power with respect to, an entity.
"Affiliate Event of Default" has the meaning set forth in Section 8.2.
"Agents" means the Administrative Agent and the Syndication Agent
collectively.
"Aggregate Commitments" means, at any time, the aggregate amount of the
Commitments then in effect. The original amount of the Aggregate Commitments is
$775,000,000.
2
"Aggregate Exposure" means, with respect to any Bank at any time, an
amount equal to the principal amount of such Bank's Commitment then in effect
or, if the Commitments have been terminated, the sum of (i) the principal amount
of the Loans held by such Bank then outstanding and (ii) such Bank's Revolving
Percentage of the L/C Obligations then outstanding.
"Aggregate Exposure Percentage" means, with respect to any Bank at any
time, the ratio (expressed as a percentage) of such Bank's Aggregate Exposure at
such time to the Aggregate Exposure of all Banks at such time.
"Aggregate Extensions of Credit" means at any time, the aggregate
amount of Extensions of Credit of the Banks outstanding at such time.
"Aggregate Loans" means the total principal amount of all outstanding
Loans.
"Agreement" means this Five-Year Revolving Loan Credit Agreement,
together with the exhibits hereto, as amended from time to time.
"Annual Report" has the meaning set forth in Section 7.1(a).
"Application" means an application, in such form as any Issuing Bank
may specify from time to time, requesting such Issuing Bank to open a Letter of
Credit.
"Assignment and Acceptance" means an Assignment and Acceptance,
substantially in the form of Exhibit G.
"Augmenting Bank" has the meaning set forth in Section 2.1(c).
"Available Commitment" means as to any Bank at any time, an amount
equal to the excess, if any, of (a) such Bank's Commitment then in effect over
(b) such Bank's Extensions of Credit then outstanding.
"Banks" has the meaning provided in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Banks shall
be deemed to include any Conduit Bank.
"Bank's Actual Reserve Cost" has the meaning set forth in Section
10.3(b).
"Base Rate" means for any day the greater of (i) an annual rate of
interest equal to that announced generally from time to time by the
Administrative Agent at its Domestic Lending Office as its prime rate, base rate
or equivalent rate and in effect on such day and (ii) the Federal Funds
Effective Rate plus 0.50%.
"Base Rate Loan" means any loan hereunder denominated in United States
dollars which the Company (on behalf of itself or an Affiliate) specifies
pursuant to Section 2.6 or Section 2.12 as a Base Rate Loan.
3
"Base Rate Margin" means the applicable amount as set forth on the
Pricing Grid; provided, however, that in the event the Commitments are
terminated pursuant to Section 8.1, the Base Rate Margin shall automatically be
increased for any period during which Loans may be outstanding after such
termination by an amount equal to the then applicable Facility Fee (expressed as
a percentage).
"Benefitted Bank" has the meaning set forth in Section 12.8(b).
"Bilateral Revolving Credit Agreements" means the bilateral Five-Year
Credit Agreements and the bilateral 364-Day/2-Year Term-Out Credit Agreements
entered into between the Company and certain Banks prior to the Effective Date.
"Borrowing" means a borrowing hereunder consisting of a Loan made to
the Company or an Affiliate by any Bank. A Borrowing is a "Domestic Borrowing"
if such Loan is a Domestic Loan, a "Eurocurrency Borrowing" if such Loan is a
Eurocurrency Loan or a "Foreign Currency Borrowing" if such Loan is a Foreign
Currency Loan.
"CAF" means the competitive advance facility contemplated in Section
2.7.
"CAF Advance" means each CAF Advance made pursuant to Section 2.7.
"CAF Advance Availability Period" means the period from and including
the Effective Date to and including the date which is 14 days prior to the
Termination Date.
"CAF Advance Confirmation" means each confirmation by the Company of
its acceptance of CAF Advance Offers, which confirmation shall be substantially
in the form of Exhibit E and shall be delivered to the Administrative Agent by
facsimile transmission.
"CAF Advance Interest Payment Date" means as to each CAF Advance, each
interest payment date specified by the Company for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date" means as to any CAF Advance, the date
specified by the Company pursuant to Section 2.8(d)(ii) in its acceptance of the
related CAF Advance Offer.
"CAF Advance Offer" means each offer by a Bank to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the information
specified in Exhibit D and shall be delivered to the Administrative Agent by
telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request" means each request by the Company for Banks to
submit bids to make CAF Advances, which request shall contain the information in
respect of such requested CAF Advances specified in Exhibit C and shall be
delivered to the Administrative Agent in writing, by facsimile transmission, or
by telephone, immediately confirmed by facsimile transmission.
4
"CAF Borrowing Date" means any Domestic Business Day (in the case of
Fixed Rate CAF Advances) or Eurodollar Business Day (in the case of LIBO Rate
CAF Advances) or any Foreign Currency Business Day (in the case of CAF Advances
denominated in a Foreign Currency) specified in a notice pursuant to Section
2.8(a) as a date on which the Company requests the Banks to make CAF Advances
hereunder.
"Commitment" means, as to any Bank, the obligation of such Bank, if
any, to make Loans and participate in Letters of Credit in an aggregate
principal amount not to exceed the amount set forth under the heading "Revolving
Commitment" opposite such Bank's name on Schedule 1 or in the Assignment and
Acceptance pursuant to which such Bank became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof.
"Commitment Quarter" means each of the respective three-month periods
during the term of this Agreement ending on September 30, December 31, March 31
and June 30.
"Conduit Bank" means any special purpose corporation organized and
administered by any Bank for the purpose of making Loans otherwise required to
be made by such Bank and designated by such Bank in a written instrument;
provided, that the designation by any Bank of a Conduit Bank shall not relieve
the designating Bank of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Bank fails to fund any such Loan, and
the designating Bank (and not the Conduit Bank) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Bank, and provided, further, that no
Conduit Bank shall (a) be entitled to receive any greater amount pursuant to
Section 2.18, 10.3, 10.4 or 12.6 than the designating Bank would have been
entitled to receive in respect of the extensions of credit made by such Conduit
Bank or (b) be deemed to have any Commitment.
"Consolidated EBITDA" means for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, (c) amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (d) depreciation and
amortization expense, (e) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (f) any non-recurring expenses or
losses, and (g) with respect to any discontinued operation, any loss resulting
therefrom; and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) to the extent included
in the statement of such Consolidated Net Income for such period, any
non-recurring income or gains or (ii) with respect to any discontinued
operation, any gain resulting therefrom, all as determined on a consolidated
basis. For the purposes of calculating Consolidated EBITDA during any four
quarter period in which a Material Acquisition or a Material Disposition has
occurred, Consolidated EBITDA for such period shall be calculated after giving
pro forma effect to such Material Acquisition or Material Disposition as if such
Material Acquisition or Material Disposition occurred on the first day of such
four quarter period.
5
"Consolidated Leverage Ratio" means as of the end of any fiscal
quarter, the ratio of (a) Consolidated Total Debt as of such date to (b)
Consolidated EBITDA for the period of four fiscal quarters ending as of such
date.
"Consolidated Net Income" means for any period, the consolidated net
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Assets" means, as of the date of determination, all
amounts that would, in conformity with GAAP, be set forth opposite the caption
"total assets" (or any like caption) on a consolidated balance sheet of the
Company and its Subsidiaries at such date.
"Consolidated Total Debt" means, as of any date and without
duplication, the aggregate principal amount of all Indebtedness of the Company
and its Subsidiaries on a consolidated basis minus Consolidated Total Net Cash
as of such date.
"Consolidated Total Net Cash" means, as of any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "cash and cash
equivalents" (or any like caption) on a consolidated balance sheet of the
Company and its Subsidiaries at such date.
"Domestic Business Day" means any day, except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or obligated
by law or regulation to close.
"Domestic Funding Office" means the office of the Administrative Agent
specified in Exhibit F hereto or such other office as may be specified from time
to time by the Administrative Agent by written notice to the Company and the
Banks as its funding office for the purpose of funding or payment of Domestic
Loans.
"Domestic Lending Office" means, as to any Bank, the office, branch or
affiliate of such Bank in the continental United States as it may from time to
time designate as the Domestic Lending Office by notice to the Administrative
Agent.
"Domestic Loan" means any Loan made pursuant to Section 2.1 denominated
in United States dollars which the Company (on behalf of itself or an Affiliate)
specifies pursuant to Section 2.6 or Section 2.12 as a Base Rate Loan.
"Effective Date" means June 20, 2002.
"Equivalent" means, in relation to any amount in United States dollars,
at any date, the amount obtained by converting such amount in United States
dollars into a specified Foreign Currency at the Exchange Rate for such Foreign
Currency, or vice versa, as applicable.
"ERISA" means the Employee Retirement Income Security Act of 1974 of
the United States, as amended.
6
"Euro" means the single currency of participating Member States of the
European Union that adopt a single currency in accordance with the Treaty on
European Union signed on February 7, 1992.
"Eurocurrencies" means United States dollars and Foreign Currencies.
"Eurodollar Business Day" means any day, except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or obligated
by law or regulation to close, on which commercial banks in New York City are
open for trading in United States dollar deposits in the interbank eurodollar
market.
"Eurodollar Funding Office" means the office of the Administrative
Agent specified in Exhibit F hereto or such other office as may be specified
from time to time by the Administrative Agent by written notice to the Company
and the Banks as its funding office for the purpose of funding or payment of
Eurocurrency Loans which are denominated in United States dollars.
"Eurodollar Lending Office" means, as to any Bank, the office, branch
or affiliate of such Bank as it may from time to time designate as the
Eurodollar Lending Office by notice to the Administrative Agent.
"Eurocurrency Loan" means any Loan made pursuant to Section 2.1
denominated in any Eurocurrency which the Company (on behalf of itself or an
Affiliate) specifies pursuant to Section 2.6 or Section 2.12 as a Eurocurrency
Loan.
"Eurocurrency Margin" means the applicable amount as set forth on the
Pricing Grid; provided, however, that in the event the Commitments are
terminated pursuant to Section 8.1, the Eurocurrency Margin shall automatically
be increased for any period during which Loans may be outstanding after such
termination by an amount equal to the then applicable Facility Fee (expressed as
a percentage).
"Eurocurrency Tranche" means the collective reference to Eurocurrency
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default" has the meaning set forth in Section 8.1.
"Event of Default - Bankruptcy" has the meaning set forth in Section
8.3.
"Exchange Rate" means on any day, with respect to any currency, the
rate at which such currency may be exchanged into any other currency, as set
forth at approximately 11:00 a.m., London time, on such date on the Reuters
World Currency Page for such currency. In the event that such rate does not
appear on any Reuters World Currency Page, the Exchange Rate shall be determined
by reference to such other publicly available service for displaying exchange
rates as may be selected by the Administrative Agent, or, in the event no such
service is selected, such Exchange Rate shall instead be the arithmetic average
of the spot rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 a.m., local time, on such date for the
7
purchase of the relevant currency for delivery two Foreign Currency Business
Days later; provided that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent, after
consultation with the Company, may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be presumed
correct absent manifest error.
"Extensions of Credit" means as to any Bank at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Loans held by such
Bank then outstanding and (b) such Bank's Revolving Percentage of the L/C
Obligations then outstanding.
"Facility Fee" has the meaning set forth in Section 2.3(a).
"Federal Funds Effective Rate" means for any day, the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Domestic Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Domestic Business Day, the
average of the quotations for the day of such transactions received by JPMorgan
Chase Bank from three federal funds brokers of recognized standing selected by
it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States, or any successor thereto.
"Fee Payment Date" means each of (a) the tenth Domestic Business Day
following the last day of each Commitment Quarter and (b) the Termination Date.
"Five-Year Term
Loan Agreement" means the $250,000,000 Five-Year Term
Loan Credit Agreement, to be dated on or about June 24, 2002, among
Visteon
Corporation, the several banks from time to time parties thereto, JPMorgan Chase
Bank, as administrative agent, and Bank of America N.A., as syndication agent.
"Fixed Rate CAF Advance" means any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request" means any CAF Advance Request
requesting the Banks to offer to make CAF Advances at a fixed rate (as opposed
to a rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Currency" means (a) with respect to Loans and Letters of
Credit, British Pounds Sterling and the euro and (b) with respect to CAF
Advances, British Pounds Sterling, euros and any other freely-convertible
currency agreed upon by the Company, the Administrative Agent and the Bank
making such CAF Advance.
"Foreign Currency Business Day" means any day, except a Saturday,
Sunday or other day on which the commercial banks in London, England are
authorized or obligated by law or regulation to close, on which the commercial
banks in London, England are open for international business (including dealings
in deposits in the relevant currency in the interbank eurocurrency market),
provided that when used in connection with (a) Foreign Currency Loans or CAF
Advances
8
denominated in euros, the term "Foreign Currency Business Day" shall
also exclude any day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer System (TARGET) (or, if such clearing system ceases
to be operative, such other clearing system (if any) determined by the
Administrative Agent to be a suitable replacement) is not open for settlement of
payment in euros and (b) CAF Advances denominated in any currency other than
United States dollars, the term "Foreign Currency Business Day" shall also
exclude any day on which banks in (i) the jurisdiction of the account to which
the proceeds of such CAF Advance are to be disbursed, and (ii) the jurisdiction
in which payments of principal of and interest on such CAF Advance are to be
made are authorized or required by law to remain closed.
"Foreign Currency Funding Office" means the office of the
Administrative Agent specified in Exhibit F hereto or such other office as may
be specified from time to time by the Administrative Agent by written notice to
the Company and the Banks as its funding office for the purpose of funding or
payment of Foreign Currency Loans or CAF Advances denominated in a Foreign
Currency.
"Foreign Currency Lending Office" means, as to any Bank, the office,
branch or affiliate of such Bank as it may from time to time designate as the
Foreign Currency Lending Office by notice to the Administrative Agent.
"Foreign Currency Loans" means any Eurocurrency Loan hereunder
denominated in a Foreign Currency.
"Foreign Currency Notice Office" means the Administrative Agent's
office located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ or such other office in London as may
be designated by the Administrative Agent by written notice to the Company and
the Banks.
"GAAP" means generally accepted accounting principles in the United
States as applied to the Company.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Gross-up" means the amount payable to the Administrative Agent or any
Bank to account for required deductions for withholding taxes as provided in
Section 10.4.
"Guarantee" means the guarantee and other obligations of the Company
set forth in Section 4.
"Guaranteed Obligations" has the meaning set forth in Section 4.
"Increasing Bank" has the meaning set forth in Section 2.1(c).
9
"Indebtedness" means, as of any date, the amount outstanding on such
date under notes, bonds, debentures, commercial paper, or other similar
evidences of indebtedness for money borrowed.
"Interest Period" means with respect to each Eurocurrency Loan:
(a) initially, the period commencing on the date of Borrowing
with respect to such Loan (or in the case of a Loan which has been
converted into a Eurocurrency Loan, on the date specified in Section
2.12) and ending one, two, three or six months thereafter, as the
Company (on behalf of itself or an Affiliate) may elect pursuant to
Section 2.6 or Section 2.12; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period for such Borrowing and ending one, two,
three or six months thereafter, as the Company (on behalf of itself or
an Affiliate) may elect pursuant to Section 2.12;
provided, however, that:
(i) any such Interest Period which would otherwise
end on a day which is not a Eurodollar Business Day (or a
Foreign Currency Business Day, in the case of Loans
denominated in a Foreign Currency) shall be extended to the
next succeeding Eurodollar Business Day or Foreign Currency
Business Day, as the case may be, unless such Eurodollar
Business Day or Foreign Currency Business Day, as the case may
be, falls in another calendar month, in which case such
Interest Period shall end on the next preceding Eurodollar
Business Day or Foreign Currency Business Day, as the case may
be,
(ii) any such Interest Period which begins on the
last Eurodollar Business Day or Foreign Currency Business Day,
as the case may be, of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on a day
which is the last Eurodollar Business Day or Foreign Currency
Business Day, as the case may be, of the applicable calendar
month; and
(iii) the Company (on behalf of itself or an
Affiliate) may not elect an Interest Period that would end
later than the Termination Date.
"Issuing Bank" means JPMorgan Chase Bank, Bank of America N.A. or any
of up to two other Banks that may become Issuing Banks hereunder from time to
time by entering into separate agreements among such other Banks and the
Company.
"L/C Commitment" means $100,000,000.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
10
"L/C Participants" means, with respect to any Letter of Credit, the
collective reference to all the Banks other than the applicable Issuing Bank.
"Letters of Credit" has the meaning set forth in Section 3.1(a).
"LIBO Rate" means with respect to any Eurocurrency Loan or LIBO Rate
CAF Advance for any Interest Period, the London interbank offered rate for
deposits in the relevant currency appearing on Telerate Page 3750 (or in the
case of a Foreign Currency Borrowing, the rate appearing on the Page for the
applicable Foreign Currency) as of 11:00 a.m. (London, England time) two
Eurodollar Business Days prior to the beginning of such Interest Period for the
period commencing on the date of such Eurocurrency Loan or LIBO Rate CAF Advance
and ending on a maturity date comparable to that of the applicable Interest
Period. In the event that such rate does not appear on Page 3750 of the Telerate
screen (or, in the case of Foreign Currencies, the applicable Page of the
Telerate screen), the "LIBO Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurocurrency rates as may
be selected by the Administrative Agent or, in the absence of such availability,
by reference to the rate at which the Administrative Agent is offered deposits
in identical currencies at or about 11:00 a.m., local time, two Foreign Currency
Business Days prior to the beginning of such Interest Period in the interbank
eurocurrency market where its eurocurrency and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"LIBO Rate CAF Advance" means any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
"LIBO Rate CAF Advance Request" means any CAF Advance Request
requesting the Banks to offer to make CAF Advances at an interest rate equal to
the LIBO Rate plus (or minus) a margin.
"Lien" means any mortgage, pledge, lien, security interest, conditional
sale or other title retention agreement or other similar encumbrance.
"Loan" means any Domestic Loan or Eurocurrency Loan.
"Mandatory Cost Rate" has the meaning set forth in Section 10.3.
"▇▇▇▇-to-Market Day" has the meaning set forth in Section 2.4.
"Material Acquisition" means any one or more acquisitions of any
business entity or entities, or of any operating unit or units of any business
entity or entities, that become consolidated with the Company in accordance with
GAAP and that involve the payment of consideration (including, without
limitation, the assumption of debt) by the Company and its Subsidiaries in
excess of $25,000,000 in the aggregate during any Commitment Quarter.
"Material Disposition" means any one or more dispositions by the
Company or a Subsidiary of any business entity or entities, or of any operating
unit or units of the Company or a Subsidiary, that become unconsolidated with
the Company in accordance with GAAP and that
11
involve the receipt of consideration by the Company and its Subsidiaries in
excess of $25,000,000 in the aggregate during any Commitment Quarter.
"Maturity Date" means (a) for any Base Rate Loan, the Termination Date
or, (b) for any Eurocurrency Loan the last day of the final Interest Period for
such Loan specified by the Company (on behalf of itself or an Affiliate)
pursuant to Section 2.6 or Section 2.12.
"National Currency Unit" means a non-decimal expression of the euro
based upon a fixed conversion rate between the euro and the former national
currency of a Participating Member State, as contemplated by Council Regulation
(EC) No. 1103/97 dated June 17, 1997.
"Normal Banking Hours" with respect to the Notice Office of the
Administrative Agent means the period from 9:00 a.m. to 5:00 p.m. in the time
zone in which the Notice Office is located on a Domestic Business Day.
"Note" means any promissory note evidencing Loans.
"Notice Office" means the office of the Administrative Agent in the
continental United States specified as such in Exhibit F hereto or such other
office of the Administrative Agent in the continental United States as it may
hereafter designate as the Notice Office by notice to the Company.
"Obligations" means the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans, CAF Advances and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company and any Affiliate, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) the
Loans, CAF Advances and all other obligations and liabilities of the Company
(and its Affiliates) to the Administrative Agent or to any Bank, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other document made, delivered or given in connection herewith or
any Letter of Credit, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Bank that are
required to be paid by the Company pursuant hereto) or otherwise.
"Participant" has the meaning set forth in Section 9.2.
"Participating Member State" means a Member State of the European Union
that has adopted, and is at the time of inquiry utilizing, the euro as its
currency.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
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"Plan" means an employee benefit plan or other plan (other than a
multi-employer benefit plan) maintained by the Company for employees of the
Company and certain Affiliates and covered by Title IV of ERISA.
"Pricing Grid" means the pricing grid set forth below and based on the
Company's long-term senior unsecured non-credit-enhanced debt ratings as
provided by Standard & Poor's Ratings Services, a Division of the McGraw Hill
Companies, Inc. ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"):
Long-Term Senior Unsecured
Non-Credit-Enhanced Debt
Rating Facility Eurocurrency Base Rate
(higher of) Fee Margin Margin
S&P/Moody's (bps.) (bps.) (bps.)
-------------------------- -------- ------------ ---------
A-/A3 10 25 0
BBB+/Baa1 12.5 32.5 0
BBB/Baa2 15 57.5 0
BBB-/Baa3 20 80 0
The applicable Facility Fee, Eurocurrency Margin and Base Rate Margin
shall be determined based upon the long-term senior unsecured
non-credit-enhanced debt ratings as provided by the S&P or Moody's. In the event
that S&P and Moody's ratings of the Company are not equivalent, the applicable
Facility Fee, Eurocurrency Margin and Base Rate Margin will be determined by the
higher rating. In the event that either S&P or Moody's ceases to provide a
long-term senior unsecured non-credit-enhanced debt rating for the Company, the
applicable Facility Fee, Eurocurrency Margin and Base Rate Margin will be
determined by reference to the rating issued by the other rating agency. For any
period in which neither S&P nor Moody's provides a long-term senior unsecured
non-credit-enhanced debt rating for the Company, the rating shall for purposes
of this definition be