Exhibit 4(a)
FIVE YEAR CREDIT AGREEMENT
Dated as of October 10, 2002
Among
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
as Borrower,
-----------
THE BANKS NAMED HEREIN
as Banks,
--------
BANK ONE, NA
as Administrative Agent,
-----------------------
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent,
--------------------
THE NORTHERN TRUST COMPANY
as Documentation Agent,
----------------------
and
▇▇ ▇▇▇▇▇▇ CHASE BANK
as Managing Agent
-----------------
BANC ONE CAPITAL MARKETS, INC.
WACHOVIA SECURITIES, INC.
as Co-Lead Arrangers and Joint Book Runners
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ........................ 1
SECTION 1.01 Certain Defined Terms ................................... 1
SECTION 1.02 Computation of Time Periods ............................. 12
SECTION 1.03 Accounting Terms; Modifications due to Implementation
of Euro ................................................. 12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES ....................... 13
SECTION 2.01 The Committed Advances .................................. 13
SECTION 2.02 Making the Committed Advances ........................... 13
SECTION 2.03 The Uncommitted Advances ................................ 17
SECTION 2.04 Facility Fee and Utilization Fee ........................ 21
SECTION 2.05 Reduction and Termination of the Commitments ............ 21
SECTION 2.06 Payment; Conversion and Continuation .................... 22
SECTION 2.07 Interest on Committed Advances .......................... 22
SECTION 2.08 Additional Interest on Eurocurrency Rate Advances ....... 23
SECTION 2.09 Interest Rate Determination ............................. 24
SECTION 2.10 Prepayments ............................................. 24
SECTION 2.11 Funding Indemnification ................................. 25
SECTION 2.12 Increased Costs and Reduced Return ...................... 25
SECTION 2.13 Illegality .............................................. 26
SECTION 2.14 Payments and Computations ............................... 26
SECTION 2.15 Sharing of Payments, Etc ................................ 28
SECTION 2.16 Currency Equivalents .................................... 28
SECTION 2.17 Borrowing Subsidiaries .................................. 29
SECTION 2.18 Taxes ................................................... 29
SECTION 2.19 Defaulting Banks ........................................ 31
SECTION 2.20 Mitigation .............................................. 33
SECTION 2.21 European Economic and Monetary Union .................... 33
SECTION 2.22 Increase of Aggregate Commitments ....................... 34
ARTICLE III CONDITIONS PRECEDENT .................................... 35
SECTION 3.01 Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 .................................. 35
SECTION 3.02 Conditions Precedent to Initial Advance to Each
Borrowing Subsidiary .................................... 36
SECTION 3.03 Conditions Precedent to Each Committed Borrowing ........ 37
SECTION 3.04 Conditions Precedent to Each Uncommitted Borrowing ...... 37
ARTICLE IV REPRESENTATIONS AND WARRANTIES .......................... 38
SECTION 4.01 Representations and Warranties of the Company ........... 38
ARTICLE V COVENANTS OF THE COMPANY ................................ 40
SECTION 5.01 Compliance with Laws, Etc ............................... 40
SECTION 5.02 Interest Coverage Ratio ................................. 40
SECTION 5.03 Reporting Requirements .................................. 40
SECTION 5.04 Use of Proceeds ......................................... 41
SECTION 5.05 Limitation on Liens, Etc ................................ 42
TABLE OF CONTENTS
(Continued)
PAGE
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SECTION 5.06 Merger; Sale of Assets .................................. 43
SECTION 5.07 Books and Records; Inspection ........................... 43
SECTION 5.08 Corporate Existence ..................................... 43
SECTION 5.09 Conduct of Business ..................................... 44
SECTION 5.10 Payment of Taxes ........................................ 44
ARTICLE VI EVENTS OF DEFAULT ....................................... 44
SECTION 6.01 Events of Default ....................................... 44
ARTICLE VII GUARANTEE ............................................... 46
SECTION 7.01 Unconditional Guarantee ................................. 46
SECTION 7.02 Validity ................................................ 46
SECTION 7.03 Waivers ................................................. 47
SECTION 7.04 Subrogation ............................................. 47
SECTION 7.05 Acceleration ............................................ 47
SECTION 7.06 Reinstatement ........................................... 47
SECTION 7.07 Continuing Guaranty; Assignments ........................ 47
ARTICLE VIII ADMINISTRATIVE AGENT; SYNDICATION AGENT; DOCUMENTATION
AGENT; CO-AGENTS ........................................ 47
SECTION 8.01 Authorization and Action ................................ 48
SECTION 8.02 Administrative Agent's Reliance, Etc .................... 48
SECTION 8.03 The Administrative Agent and Affiliates ................. 49
SECTION 8.04 Bank Credit Decision; Notice of Default ................. 49
SECTION 8.05 Indemnification ......................................... 50
SECTION 8.06 Successor Administrative Agent .......................... 50
SECTION 8.07 Syndication Agent; Documentation Agent; Managing Agent .. 51
ARTICLE IX BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS ....... 51
SECTION 9.01 Successors and Assigns .................................. 51
SECTION 9.02 Participations. ......................................... 51
SECTION 9.03 Assignments. ............................................ 52
SECTION 9.04 Dissemination of Information ............................ 54
SECTION 9.05 Tax Treatment ........................................... 54
ARTICLE X MISCELLANEOUS ........................................... 54
SECTION 10.01 Amendments, Etc ......................................... 54
SECTION 10.02 Notices, Etc ............................................ 54
SECTION 10.03 No Waiver; Remedies ..................................... 55
SECTION 10.04 Costs and Expenses ...................................... 55
SECTION 10.05 Right of Set-off ........................................ 56
SECTION 10.06 Binding Effect .......................................... 56
SECTION 10.07 Governing Law ........................................... 56
SECTION 10.08 Execution in Counterparts ............................... 56
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TABLE OF CONTENTS
(Continued)
PAGE
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SECTION 10.09 Confidentiality ......................................... 56
SECTION 10.10 Non-Reliance by the Banks ............................... 57
SECTION 10.11 No Indirect Security .................................... 57
SECTION 10.12 Indemnification ......................................... 57
SECTION 10.13 Partial Invalidity ...................................... 58
SECTION 10.14 WAIVER OF JURY TRIAL .................................... 58
SECTION 10.15 Jurisdiction, Etc ....................................... 58
SECTION 10.16 Nonliability of Banks ................................... 59
SECTION 10.17 Termination of Existing Agreement ....................... 59
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SCHEDULES
SCHEDULE I -- Banks
SCHEDULE II -- Pricing Schedule
SCHEDULE III -- Litigation
EXHIBITS
EXHIBIT A -- Form of Assignment and Assumption Agreement
EXHIBIT B -- Form of Assumption Letter
EXHIBIT C-1 -- Form of Committed Note
EXHIBIT C-2 -- Form of Uncommitted Note
EXHIBIT D-1 -- Form of Notice of Committed Borrowing
EXHIBIT D-2 -- Form of Notice of Uncommitted Borrowing
EXHIBIT E -- Form of Notice of Continuation/Conversion
EXHIBIT F -- Form of Commitment Increase Consent
EXHIBIT G -- Form of Opinion of Counsel to the Company
EXHIBIT H -- Form of Opinion of Counsel to Borrowing Subsidiary
FIVE YEAR CREDIT AGREEMENT
Dated as of October 10, 2002
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a Delaware corporation (the "Company"),
the banks listed on the signature pages hereof, and BANK ONE, NA, as
Administrative Agent (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Deadline" has the meaning specified in Section 2.03(a)(iii).
"Administrative Agent" means Bank One, in its capacity as the contractual
representative for all of the Banks for purposes of this Agreement, as
designated and appointed in accordance with Article VIII, and any successor
thereto as provided herein.
"Advance" means a Committed Advance or an Uncommitted Advance.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person.
"Agreement" shall mean this Five Year Credit Agreement, as the same may be
amended, modified, supplemented or restated from time to time.
"Alternative Currency" means Sterling, Yen and any other currency (other
than Dollars) (i) which is readily available, freely transferable and
convertible into Dollars in the international currency and exchange markets,
(ii) in which deposits are customarily offered to banks in the London interbank
market and (iii) as to which an equivalent amount in Dollars may be readily
calculated, including the Euro.
"Applicable Facility Fee Rate" means the percentage rate per annum which is
applicable with respect to the Facility Fee as set forth on the Pricing
Schedule.
"Applicable Lending Office" means, with respect to each Bank, such Bank's
Domestic Lending Office in the case of a Base Rate Advance, and such Bank's
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance and, in
the case of an Uncommitted Advance, the office of such Bank notified by such
Bank to the Administrative Agent as its Applicable Lending Office with respect
to such Uncommitted Advance.
"Applicable Margin" means, with respect Committed Advances of any Type at
any time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means, at any particular time, the
percentage rate per annum which is applicable at such time with respect to the
Utilization Fee as set forth on the Pricing Schedule.
"Arrangers" means Banc One Capital Markets, Inc. and Wachovia Securities,
Inc.
"Assumption Letter" means a letter of a Subsidiary of the Company addressed
to the Banks in substantially the form of Exhibit B hereto pursuant to which
such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be bound
by the terms and conditions hereof.
"Available Commitment" has the meaning specified in Section 2.01.
"Bank One" means Bank One, NA, a national banking association having its
headquarters in Chicago, Illinois, in its individual capacity, and its
successors.
"Banks" means the banks listed on Schedule I hereto and each Person
that becomes a party hereto pursuant to Section 9.03.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the prime rate of interest announced by Bank One or its parent
from time to time (which is not necessarily the lowest rate of interest
charged to any customer), changing when and as said prime rate changes; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Committed Advance which bears interest at a
rate based upon the Base Rate, as provided in Section 2.07(a).
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means a Committed Borrowing or an Uncommitted Borrowing.
"Borrowing Subsidiary" means any Subsidiary of the Company duly designated
by the Company pursuant to Section 2.17 hereof to make Borrowings hereunder,
which Subsidiary shall have delivered an Assumption Letter to the Administrative
Agent in accordance with Section 2.17.
"Business Day" means a day of the year (other than a Saturday or Sunday) on
which banks are not required or authorized by law to close in New York City and
Chicago and, if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealings are carried on in the London interbank market (and,
if such Eurocurrency Rate Advances are
2
denominated in the Euro, a day upon which such clearing system as is determined
by the Administrative Agent to be suitable for clearing or settlement of the
Euro is open for business).
"Commission" means the Securities and Exchange Commission or any federal
body succeeding to its functions.
"Commitment" has the meaning specified in Section 2.01.
"Committed Advance" means an advance by a Bank to a Borrower as part of a
Committed Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance, each of which shall be a "Type" of Committed Advance.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Advances of the same Type made by each of the Banks to a Borrower
pursuant to Section 2.01.
"Committed Note" means a promissory note, in substantially the form of
Exhibit C-1 hereto, duly executed by the Company or a Borrowing Subsidiary and
payable to the order of a Bank in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such promissory note.
"Consolidated EBIT" means, for any period, on a consolidated basis for the
Company and its Consolidated Subsidiaries, the sum of the amounts for such
period of (a) Consolidated Net Income (excluding non-recurring or extraordinary
gains, losses, expenses and charges but including cash charges and payments
during such period related to extraordinary or non-recurring gains, losses,
charges and expenses), plus (b) charges against income for foreign, federal,
state and local taxes, plus (c) Consolidated Interest Expense plus (or minus)
(d) pre tax income (or loss) from discontinued operations.
"Consolidated Interest Expense" means, for any period, (a) the sum of total
interest expense of the Company and its Consolidated Subsidiaries, whether paid
or accrued, as determined in accordance with GAAP, plus (b) without double
counting, the consolidated interest, fees, yield or discount accrued during such
period on the aggregate outstanding investment or claim held by purchasers,
assignees or other transferees of (or of interests in) receivables of the
Company and its Consolidated Subsidiaries in connection with Securitization
Transactions (regardless of the accounting treatment of such Securitization
Transactions).
"Consolidated Net Income" means, for any period, the consolidated net
earnings (or loss) after taxes of the Company and its Consolidated Subsidiaries
for such period, determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary the accounts of
which would be consolidated with those of the Company in its consolidated
financial statements at such date in accordance with GAAP; provided, that for
purposes of Sections 5.02 and 5.03, "Consolidated Subsidiary" shall mean any
subsidiary the accounts of which would be consolidated with those of the Company
in its consolidated financial statements at such date in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date, an amount equal to
the sum of (i) the par or stated value of the outstanding shares of all classes
of capital stock of the Company,
3
(ii) paid-in capital and capital surplus of the Company and (iii)
retained earnings of the Company, as each of which would appear on a
consolidated balance sheet of the Company and its Consolidated Subsidiaries
prepared as of the last day of the most recently completed fiscal quarter in
accordance with GAAP, less the aggregate net amount of (i) all assets so
appearing which in accordance with GAAP are deemed intangible, such intangible
assets to specifically include, but not be limited to, licenses, copyrights,
trademarks, tradenames, patents and goodwill, and (ii) any write-up in the book
value of assets made after December 31, 1997, other than any such write-up to an
appraised fair market value in accordance with the purchase accounting
requirements of GAAP.
"Debt" means (but without duplication of any item) (i) indebtedness for
borrowed money, (ii) obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations as lessee under leases which shall have
been or should be, in accordance with generally accepted accounting principles,
recorded as capital leases, and (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clause (i),
(ii) or (iii) above.
"Defaulted Advance" means, with respect to any Bank at any time, the amount
of any Advance required to be made by such Bank to the Borrower pursuant to
Section 2.01 or Section 2.03(a) at or prior to such time that has not been so
made as of such time; provided, however, that any Advance made by the
Administrative Agent for the account of such Bank pursuant to Section 2.02(e)
shall not be considered a Defaulted Advance even if, at such time, such Bank
shall not have reimbursed the Administrative Agent therefor as provided in
Section 2.02(e). If part of a Defaulted Advance shall be deemed made pursuant to
Section 2.19(a), the remaining part of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant to
Section 2.01 or Section 2.03(a) on the same date as the Defaulted Advance so
deemed made in part.
"Defaulted Amount" means, with respect to any Bank at any time, any amount
required to be paid by such Bank to the Administrative Agent or any other Bank
hereunder at or prior to such time that has not been so paid as of such time,
including, without limitation, any amount required to be paid by such Bank to
(a) the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Bank, (b) any other Bank pursuant to Section 2.15
to purchase any participation in Advances owing to such other Bank and (c) the
Administrative Agent pursuant to Section 8.05 to reimburse the Administrative
Agent for such Bank's ratable share of any amount required to be paid by the
Banks to the Administrative Agent as provided therein. If part of a Defaulted
Amount shall be deemed paid pursuant to Section 2.19(b), the remaining part of
such Defaulted Amount shall be considered a Defaulted Amount originally required
to be made hereunder on the same date as the Defaulted Amount so deemed paid in
part.
"Defaulting Bank" means, at any time, any Bank that, at such time, (a) owes
a Defaulted Advance or a Defaulted Amount or (b) shall take or be the subject of
any action or proceeding of a type described in Section 6.01(f).
"Dollar Amount" means, for any date of determination:
4
(a) with respect to any amount denominated in Dollars, such amount;
and
(b) with respect to an amount denominated in any Alternative Currency,
the amount of Dollars into which the Administrative Agent could, in
accordance with its practice from time to time in the London interbank
foreign exchange market, convert such amount of Alternative Currency at its
spot rate of exchange applicable to the relevant transaction at or about
11:00 a.m., London time, on the date of such determination, for the
delivery of Dollars two Business Days thereafter. For purposes of this
Agreement, the Dollar Amount of any amount received by a Bank hereunder
shall be determined as of the date of such receipt.
"Dollars" and the sign "$" each means the lawful currency of the United
States.
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the assignment agreement pursuant to which it became a
Bank, as the case may be, or such other office of such Bank as such Bank may
from time to time specify to the Company and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of noncompliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial
interpretation relating to the environment, health, safety or Hazardous
Materials.
"Environmental Permit" means any permit, approval, indemnification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Company's controlled group, or under common control with the
Company, as determined under Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with
5
respect to such event has been waived by the PBGC; (b) the application for a
minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan pursuant
to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Company or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the
Company or any of its ERISA Affiliates from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the failure by the Company or any of its ERISA
Affiliates to make a payment to a Plan if the conditions for the imposition of a
lien under Section 302(f)(1) of ERISA are satisfied; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of trustee to administer, a
Plan.
"Euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"Eurocurrency Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Eurocurrency Lending Office" opposite its name on
Schedule I hereto or in the assignment agreement pursuant to which it became a
Bank (or, if no such office is specified, its Domestic Lending Office), or such
other office of such Bank as such Bank may from time to time specify to the
Company and the Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, with respect to any Eurocurrency Rate Advance
for any specified Interest Period or for the term of any Uncommitted Advance
with respect to which interest is calculated by reference to the Eurocurrency
Rate, the applicable British Bankers' Association LIBOR rate for deposits in
Dollars or the applicable Alternative Currency of such Eurocurrency Rate Advance
as reported by any generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that, if no such British Bankers' Association LIBOR rate is available to the
Administrative Agent, the applicable Eurocurrency Rate for the relevant Interest
Period shall instead be the rate determined by the Administrative Agent to be
the rate at which Bank One or one of its Affiliate banks offers to place
deposits in Dollars or the applicable Alternative Currency of such Eurocurrency
Rate Advance with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of Bank One's relevant
Eurocurrency Rate Advance or, in the case of an Uncommitted Advance, the amount
of the Uncommitted Advance requested by a Borrower, and having a maturity equal
to such Interest Period.
6
"Eurocurrency Rate Advance" means a Committed Advance which bears interest
at a rate based upon the Eurocurrency Rate, as provided in Section 2.07(c).
"Eurocurrency Rate Reserve Percentage" of any Bank for any Interest Period
for a Eurocurrency Rate Advance means the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor), or, in the case of Committed Advances in Alternative
Currencies, any similar authority outside the United States, for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Bank with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances of such
currency is determined) having a term equal to such Interest Period.
"Eurocurrency Rate Uncommitted Borrowing" means an Uncommitted Borrowing
comprised of Uncommitted Advances denominated in Dollars, bearing interest based
upon the Eurocurrency Rate.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Agreement" has the meaning specified in Section 10.17.
"Facility Fee" has the meaning specified in Section 2.04.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fixed Rate Uncommitted Borrowing" means an Uncommitted Borrowing
consisting of Uncommitted Advances bearing interest at a fixed percentage rate
per annum (expressed in the form of a decimal to no more than four decimal
places) specified by the respective Banks making such Uncommitted Advances
pursuant to the procedure described in Section 2.03.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, radon
gas and any other chemicals, materials or substances designated, classified or
regulated as being "hazardous"
7
or "toxic", or words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial interpretation.
"Insurance Policy Debt" means Debt of the Company or any of its
Subsidiaries under policies of life insurance now or hereafter owned by the
Company or any of its Subsidiaries under which policies the sole recourse for
such borrowing is against such policies.
"Interest Coverage Ratio" means the ratio, determined on a consolidated
basis for the Company and its Consolidated Subsidiaries in accordance with GAAP
as of the end of any fiscal quarter, of Consolidated EBIT to Consolidated
Interest Expense, in each case determined as of the last day of such fiscal
quarter for the four-quarter period then ended.
"Interest Period" means, for each Eurocurrency Rate Advance comprising part
of the same Committed Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of any conversion or continuation thereof,
and ending on the last day of the period selected by a Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two,
three or six months, in each case as a Borrower may select, upon notice received
by the Administrative Agent pursuant to Section 2.02 or 2.06; provided, however,
that
(i) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Committed Borrowing shall be of the
same duration;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(iii) whenever the first day of any Interest Period occurs on a day in
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month; and
(iv) no Interest Period may terminate later than the Termination Date.
"Lien" means, with respect to any asset, any security interest, mortgage,
pledge, lien, claim, charge or encumbrance of any kind in respect of such asset.
"Majority Banks" means at any time Banks holding more than 50% of the
then aggregate unpaid principal amount of the Committed Advances held by the
Banks, or, if no such principal amount is then outstanding, Banks having more
than 50% of the Commitments.
"Margin Stock" has the meaning specified in Regulation U issued by the
Board of Governors of the Federal Reserve System.
8
"Material Adverse Effect" means a material adverse effect on (i) the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, (ii) the legality, validity or
enforceability of this Agreement or the Notes or (iii) the ability of the
Company to perform its obligations under this Agreement and the Notes.
"Material Subsidiary" means a Subsidiary of the Company which, at the time
of determination, (i) shall own assets comprising in excess of 10% of all of the
assets of the Company and its consolidated Subsidiaries on a consolidated basis,
or (ii) has operating income for the four fiscal quarters most recently ended in
excess of 10% of the operating income of the Company and its consolidated
Subsidiaries on a consolidated basis; provided, that solely with respect to
Article V, in no event shall an SPV be deemed to be a Material Subsidiary.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any of its ERISA Affiliates is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any of its ERISA Affiliates and at least one Person other than the
Company and its ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"National Currency Unit" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Note" means a Committed Note or an Uncommitted Note.
"Notice of Committed Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion or Continuation" has the meaning specified in Section
2.06(b).
"Notice of Uncommitted Borrowing" has the meaning specified in Section
2.03(a).
"Participants" has the meaning specified in Section 9.02.1.
"PBGC" means the Pension Benefit Guaranty Corporation and its successors
and assigns.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
9
"Pricing Schedule" means the Schedule attached hereto as such.
"Pro Rata Share" means, at any time with respect to any Bank, the ratio
(expressed as a percentage) that such Bank's Commitment bears to the aggregate
Commitments of all Banks at such time or, at any time after the Commitments have
been terminated, the ratio (expressed as a percentage) that such Bank's
outstanding Committed Advances bears to the aggregate outstanding Committed
Advances of all Banks at such time.
"Public Debt Rating" means, on any date, the rating that has been most
recently announced by S&P or Moody's, as the case may be, for any class of
long-term senior non-credit-enhanced unsecured debt issued by the Company,
changing when and as the applicable rating agency publicly announces a change in
its Public Debt Rating.
"Purchasers" has the meaning specified in Section 9.03.1.
"Quote Deadline" has the meaning specified in Section 2.03(a)(ii).
"Receivables" means a payment owing to a Person (whether constituting an
account, chattel paper, document, instrument or general intangible) arising from
the provision of merchandise, goods or services by such Person, including the
right to payment of any interest or finance charges and other obligations owing
to such Person with respect thereto.
"Register" has the meaning specified in Section 9.03.4.
"Related Security" means with respect to any Receivable: (a) all security
interests or liens and property subject thereto from time to time securing or
purporting to secure the payment of such Receivable by the Person obligated
thereon, (b) all guaranties, indemnities and warranties, insurance policies,
financing statements and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable, (c) all
right, title and interest of the Company or any Material Subsidiary or any SPV
in and to any goods (including returned, repossessed or foreclosed goods) the
sale of which gave rise to such Receivable; provided, that Related Security will
not include returned goods only to the extent that all amounts required to be
paid pursuant to Securitization Transactions in respect of such goods have been
paid, (d) all collections with respect to any of the foregoing, (e) all records
with respect to any of the foregoing, and (f) all proceeds of such Receivable or
with respect to any of the foregoing.
"Request Deadline" has the meaning specified in Section 2.03(a)(i).
"Responsible Officer" means the Executive Vice President and Chief
Financial Officer of the Company, the Vice President and Treasurer of the
Company, or any other officer of the Company or any other Borrower responsible
for overseeing or reviewing compliance with this Agreement or any Note.
"S&P" means Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
10
"Securitization Transactions" means one or more transactions involving the
securitization by the Company or any of its Subsidiaries of Receivables and
Related Security, including, without limitation, as a result of the sale or
granting of a Lien in such Receivables and Related Security to an SPV or another
Person and the contribution of Receivables and Related Security to an SPV;
provided, that the amount of the obligations incurred under all such
transactions by all such Persons that would be characterized as principal if
structured as a secured lending transaction rather than as a purchase does not
exceed $350,000,000 in the aggregate at any one time outstanding.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or any
of its ERISA Affiliates and no Person other than the Company and its ERISA
Affiliates or (b) was so maintained and in respect of which the Company or any
of its ERISA Affiliates could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SPV" means a Subsidiary of the Company created for the sole purpose of
purchasing Receivables from the Company or any of its Subsidiaries as part of a
Securitization Transaction.
"Sterling" means the lawful currency of the United Kingdom.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which securities or other ownership interests having (a) ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions or (b) having the ability to direct the management of such
corporation, partnership, limited liability company, association or other
business entity, are at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of (i) October 10, 2007 or (ii) the
date the Commitments are terminated in whole pursuant to Section 2.05 or 6.01.
"Transferee" has the meaning specified in Section 9.04.
"Uncommitted Advance" means an advance by a Bank to a Borrower as part of
an Uncommitted Borrowing resulting from the auction bidding procedure described
in Section 2.03.
"Uncommitted Borrowing" means a borrowing consisting of simultaneous
Uncommitted Advances from each of the Banks whose offer to make one or more
Uncommitted Advances as part of such borrowing has been accepted by a Borrower
under the auction bidding procedure described in Section 2.03.
"Uncommitted Borrowing Margin" means, with respect to any Eurocurrency Rate
specified by a Borrower in a Notice of Uncommitted Borrowing and any offer made
by a Bank in response to such Notice of Uncommitted Borrowing, the margin
(expressed as a percentage rate per annum) to be added to or subtracted from
such Eurocurrency Rate in order to determine the interest rate per annum at
which such Bank is willing to, and offers to, make an Uncommitted Advance to
such Borrower as part of a Eurocurrency Rate Uncommitted Borrowing.
11
"Uncommitted Note" means a promissory note, in substantially the form of
Exhibit C-2 hereto, duly executed by the Company or a Borrowing Subsidiary and
evidencing an Uncommitted Advance made by such Bank, including any amendment,
modification, renewal or replacement of such promissory note.
"Utilization Fee" has the meaning specified in Section 2.04.
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle E of
Title IV of ERISA.
"Yen" means the lawful currency of Japan.
SECTION 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.03 Accounting Terms; Modifications due to Implementation of Euro.
(a) All accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements then most recently
delivered by the Company to the Banks in accordance with Section 5.03 ("GAAP");
provided, however, that, if any changes in accounting principles from those used
in the preparation of the consolidated financial statements of the Company and
its Subsidiaries for the fiscal year of the Company ended December 31, 2001 (as
delivered to the Banks pursuant to Section 4.01(e)) occur by reason of the
promulgation of rules, regulations, pronouncements, opinions or other
requirements of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and such changes would affect (or would result in a
change in the method of calculation of) the covenant set forth in Section 5.02,
or any of the defined terms related thereto contained in Section 1.01, then upon
the request of any party hereto, the Company, the Administrative Agent and the
Banks shall enter into negotiations in good faith, if and to the extent
necessary, to amend such covenant or such terms as would be affected by such
changes in GAAP, in accordance with Section 10.01, in such manner as would
maintain the economic terms of such covenant as in effect under this Agreement,
prior to giving effect to the occurrence of any such changes; and provided
further, however, that until the amendment of the covenant and the defined terms
referred to in the immediately preceding proviso becomes effective, such
covenant and defined terms shall be performed, observed and determined, and any
determination of compliance with such covenant shall be made, as though no such
changes in accounting principles had been made and the Company shall deliver to
the Banks, in addition to the consolidated financial statements otherwise
required to be delivered to the Banks under Sections 5.03(a) or 5.03(b) during
such period, a statement of reconciliation conforming such consolidated
financial statements to GAAP prior to such changes.
(b) If the Administrative Agent determines that modifications to this
Agreement are necessary as a result of the commencement of the third stage of
European Economic and Monetary Union, then the Company, the Administrative Agent
and the Banks shall enter into negotiations in good faith to amend this
Agreement in such manner as to put the parties in the same position as if the
Euro Implementation Date had not occurred. No such
12
modifications shall become effective until this Agreement has been amended in
accordance with Section 10.01 to incorporate such modifications.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Committed Advances. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make Committed Advances to the
Borrowers from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount with respect to
all Borrowers not to exceed at any time outstanding an amount (such Bank's
"Available Commitment") equal to (i) the amount set forth opposite such Bank's
name on Schedule I hereto or, if such Bank has entered into any assignment
agreement, set forth for such Bank in the Register, as such amount may be
reduced pursuant to Section 2.05 (such Bank's "Commitment") minus (ii) such
Bank's Pro Rata Share of the aggregate amount of the Uncommitted Advances then
outstanding. Each Committed Borrowing shall be in an aggregate amount of not
less than $20,000,000 or an integral multiple of $1,000,000 in excess thereof
or, if the requested currency for such Committed Advance is not Dollars, an
equivalent amount (determined in accordance with Section 2.16) and multiple in
the requested Alternative Currency, and, subject to Section 2.02, shall consist
of Committed Advances of the same Type made on the same day to the same Borrower
by the Banks ratably according to their respective Commitments in the currency
so requested. Within the limits of each Bank's Available Commitment, a Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.10, and
reborrow under this Section 2.01.
SECTION 2.02 Making the Committed Advances. (a) Each Committed Borrowing
shall be made on notice by the Company (or, if such Borrower is a Borrowing
Subsidiary, by the Company on behalf of such Borrowing Subsidiary) to the
Administrative Agent (which shall give each Bank prompt notice thereof by
telecopy), given not later than 10:00 A.M. (Chicago time) on (i) the date of a
proposed Committed Borrowing comprised of Base Rate Advances, (ii) the third
Business Day prior to the date of a proposed Committed Borrowing comprised of
Eurocurrency Rate Advances to be denominated in Dollars, and (iii) the fourth
Business Day prior to the date of a proposed Committed Borrowing comprised of
Eurocurrency Rate Advances to be denominated in an Alternative Currency. Each
such notice of a Committed Borrowing (a "Notice of Committed Borrowing") shall
be by telecopy confirmed immediately in writing, in substantially the form of
Exhibit D-1 hereto, specifying therein the requested (i) date of such Committed
Borrowing, (ii) Type of Committed Advances comprising such Committed Borrowing,
which, in the case of a Committed Borrowing denominated in an Alternative
Currency, shall be Eurocurrency Rate Advances, (iii) currency for such Committed
Borrowing, which shall be in Dollars or an Alternative Currency, (iv) aggregate
amount of such Committed Borrowing, (v) in the case of a Committed Borrowing
consisting of Eurocurrency Advances, the initial Interest Period for each
Committed Advance comprising such Committed Borrowing, and (vi) whether such
Committed Borrowing is to be made by the Company or by a specified Borrowing
Subsidiary. The Administrative Agent shall, promptly after such time as the
Company or such Borrower may no longer revoke the Notice of Committed Borrowing
without any liability to the Company or such Borrower, notify each Bank and the
Company or such Borrower of the applicable interest rate under Section 2.07(a)
or (b). Each Bank shall, before
13
12:00 P.M. (Chicago time) on the date of such Committed Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Domestic Lending Office of the Bank then acting as Administrative
Agent, in federal or otherwise immediately available funds, such Bank's Pro Rata
Share of such Committed Borrowing. After the Administrative Agent receives such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the applicable
Borrower at the Administrative Agent's aforesaid address.
(a) Anything in subsection (a) above to the contrary notwithstanding:
(i) If with respect to a request for a Committed Borrowing of an
Alternative Currency other than Sterling, Euros or Yen, any Bank shall,
prior to 10:00 A.M. (Chicago time) on the second Business Day before the
requested date of such Committed Borrowing, notify the Administrative Agent
that the requested Alternative Currency is not practically available to
such Bank in the amount required to make its Committed Advance in
connection therewith; or
(ii) If any Bank shall, prior to making any requested Committed
Borrowing consisting of Eurocurrency Rate Advances in an Alternative
Currency, notify the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts
that it is unlawful, for such Bank or its Eurocurrency Lending Office or
any other Applicable Lending Office to perform its obligations hereunder to
make Eurocurrency Rate Advances in such currency or to fund or maintain
Eurocurrency Rate Advances in such currency hereunder; or
(iii) If the Majority Banks shall, prior to making any requested
Committed Borrowing of an Alternative Currency other than Sterling, Yen or
the Euro, notify the Administrative Agent or the Administrative Agent shall
reasonably determine that currency control or other exchange regulations
are imposed in the country in which such currency is issued which result in
the introduction of different types of such currency or that there is a
change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would make
it impracticable for such Advance to be denominated in the Alternative
Currency;
then, upon receipt of such notice, the Administrative Agent shall so notify the
Company and the applicable Borrower (if other than the Company) and the Company
or such Borrower may, without incurring an obligation to indemnify for losses,
costs or expenses under Section 2.02(d), by notice to the Administrative Agent
(which shall promptly notify each Bank), either
(x) withdraw the applicable Notice of Committed Borrowing, in which
case the Committed Borrowing shall not occur;
(y) request that such Committed Borrowing be made by the Banks in
Dollars as a Committed Borrowing comprised of either Eurocurrency Rate
Advances or Base Rate Advances, in which case the original Notice of
Committed Borrowing shall be deemed to be a Notice of Committed Borrowing
which requests a Committed Borrowing
14
in an aggregate principal amount in Dollars equivalent, on the date the
Company or such Borrower so notifies the Administrative Agent, to the
amount of the originally requested currency for such Type of Committed
Advances (determined in accordance with Section 2.16); provided that such
request may not be made by the Company or such Borrower if the requested
Type of Committed Advances is Eurocurrency Rate Advances and the request by
the Company or such Borrower is not given to the Administrative Agent prior
to 2:00 P.M. (London time) on the second Business Day before the requested
date of such Committed Borrowing; or
(z) only in the case of a Bank giving a notice described in Section
2.02(b)(ii) above, request that such Committed Borrowing be made by the
Banks (other than the notifying Bank) and that no Committed Advance be made
by the notifying Bank in connection with such Committed Borrowing.
In the case of any notice given under clause (y) above, the Company or such
Borrower shall specify in such notice the amount and type of Committed Advance
to be made by each Bank in connection therewith. Any notice under this
subsection (b) shall be given no later than 2:00 P.M. (London time) two Business
Days before the date of the requested Committed Borrowing, may be given by
telephone and, if by telephone, shall be confirmed promptly in writing. If
neither the Company nor the applicable Borrower shall provide a timely notice as
contemplated in clause (x), (y) or (z) above in response to a notice by any Bank
under clause (i) or (ii) above, the applicable Notice of Committed Borrowing
shall be deemed withdrawn.
(c) Anything in subsection (a) above to the contrary notwithstanding, if
the Majority Banks shall, no later than 5:00 P.M. (Chicago time) three Business
Days before the date of any requested Committed Borrowing, continuation or
conversion consisting of Eurocurrency Rate Advances, or any continuation thereof
or conversion thereto, notify the Administrative Agent that the Eurocurrency
Rate for any Interest Period for such Eurocurrency Rate Advances, plus
additional interest, if any, payable under Section 2.08, will not adequately
reflect the cost to such Majority Banks of making, funding, converting to or
continuing their respective Eurocurrency Rate Advances for such Committed
Borrowing for such Interest Period, then the Administrative Agent shall promptly
notify the Company, the applicable Borrower (if other than the Company) and the
Banks of such circumstances and upon receipt of such notice, the Company or such
Borrower may, without incurring an obligation to indemnify for losses, costs or
expenses under Section 2.02(d), by notice to the Administrative Agent (which
shall promptly notify each Bank), either:
(i) withdraw the applicable Notice of Committed Borrowing, in which
case the Committed Borrowing shall not occur;
(ii) withdraw the applicable Notice of Conversion or Continuation, in
which case the conversion or continuation of such Committed Borrowing shall
not occur; or
(iii) request that such Committed Borrowing, continuation or
conversion be made by the Banks in Dollars as a Committed Borrowing,
continuation or conversion, in which case the original Notice of Committed
Borrowing, or Notice of
15
Conversion or Continuation shall be deemed to be a Notice of Committed
Borrowing, or Notice of Conversion or Continuation which requests a
Committed Borrowing, continuation or conversion in an aggregate principal
amount in Dollars equivalent, on the date the Company or such Borrower so
notifies the Administrative Agent, to the amount of the
originally-requested currency for such Committed Advances; provided that
such request may not be made by the Company or such Borrower if the request
by the Company or such Borrower is not given to the Administrative Agent
prior to 2:00 P.M. (London time) on the second Business Day before the
requested date of such Committed Borrowing, continuation or conversion.
In the case of any notice given under clause (iii) above, the Company or such
Borrower shall specify in such notice the amount and Type of Committed Advances
to be made, continued or converted by the Banks in connection therewith. Any
notice under this subsection (c) shall be given no later than 2:00 P.M. (London
time) two Business Days before the date of the requested Committed Borrowing,
may be given by telephone, and, if by telephone, shall be confirmed promptly in
writing. From and after the date the Administrative Agent receives the notice
described in Section 2.02(c), the Banks' obligation to make Eurocurrency
Advances for any affected Interest Period shall be suspended until the Majority
Banks notify the Administrative Agent that the circumstances giving rise to such
notice no longer exist. If neither the Company nor the applicable Borrower shall
provide a timely notice as contemplated in clauses (i), (ii) or (iii) above with
respect to a Notice of Committed Borrowing, the applicable Notice of Committed
Borrowing shall be deemed withdrawn. If neither the Company nor the applicable
Borrower shall provide timely a notice as contemplated in clauses (i), (ii) or
(iii) above with respect to a Notice of Continuation or Conversion, the Company
or such applicable Borrower shall be deemed to have made the request described
in clause (iii).
(d) Each Notice of Committed Borrowing and Notice of Conversion or
Continuation may be revoked by the Company or, if other than the Company, the
applicable Borrower, by notice to the Administrative Agent without any liability
on the part of the Company or such Borrower at any time prior to (i) 10:00 A.M.
(Chicago time) on the date of a proposed Committed Borrowing, continuation or
conversion comprised of Base Rate Advances, (ii) 11:00 A.M. (London time) on the
second Business Day prior to the date of a proposed Committed Borrowing,
continuation or conversion comprised of Eurocurrency Rate Advances to be
denominated in Dollars, and (iii) 11:00 A.M. (London time) on the third Business
Day prior to the date of a proposed Committed Borrowing, continuation or
conversion comprised of Eurocurrency Rate Advances to be denominated in an
Alternative Currency. In the case of any Committed Borrowing, continuation or
conversion which the related Notice of Committed Borrowing, or Notice of
Conversion or Continuation, specifies is to be comprised of Eurocurrency Rate
Advances, unless the Company or the applicable Borrower revokes such Notice of
Committed Borrowing or Notice of Conversion or Continuation in accordance with
the preceding sentence and except as otherwise provided in Sections 2.02(b) and
(c), the Company or such Borrower shall indemnify each Bank against any loss,
cost or expense reasonably incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing or Notice of
Conversion or Continuation for such Committed Borrowing, conversion or
continuation, the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to
16
fund the Committed Advance to be made by such Bank as part of such Committed
Borrowing, conversion or continuation, when such Committed Advance, as a result
of such failure, is not made, continued or converted on such date.
(e) Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Committed Borrowing that such Bank will not make
available to the Administrative Agent such Bank's Pro Rata Share of such
Committed Borrowing, the Administrative Agent may assume that such Bank has made
such Pro Rata Share available to the Administrative Agent on the date of such
Committed Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the applicable Borrower on such date. If and
to the extent that such Bank shall not have so made such Pro Rata Share
available to the Administrative Agent, such Bank and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Committed Advances comprising such
Committed Borrowing and (ii) in the case of such Bank, the Federal Funds Rate.
If such Bank shall repay such corresponding amount to the Administrative Agent,
such amount so repaid shall constitute such Bank's Committed Advance as part of
such Committed Borrowing for purposes of this Agreement.
(f) A Bank's failure to make the Committed Advance to be made by it as part
of any Committed Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its Committed Advance on the date of such Committed
Borrowing. No Bank shall be responsible for the failure of any other Bank to
make the Committed Advance to be made by such other Bank on the date of any
Committed Borrowing.
SECTION 2.03 The Uncommitted Advances. (a) Each Bank severally agrees that
any Borrower may make Uncommitted Borrowings in Dollars from time to time on any
Business Day during the period from the date hereof until 30 days before the
Termination Date in the manner set forth below; provided that, following the
making of each Uncommitted Borrowing, the aggregate amount with respect to all
Borrowers of the Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Banks.
(i) A Borrower may request, and the Company may request for the
benefit of any Borrowing Subsidiary, an Uncommitted Borrowing to be made by
such Borrower under this Section 2.03 by delivering to the Administrative
Agent, by telecopier not later than the applicable Request Deadline a
notice of an Uncommitted Borrowing (a "Notice of Uncommitted Borrowing"),
in substantially the form of Exhibit D-2 hereto, specifying therein (A) the
requested date of the proposed Uncommitted Borrowing, (B) the aggregate
amount of the proposed Uncommitted Borrowing, (C) that each Bank submitting
an offer shall quote an Uncommitted Borrowing Margin, or that each Bank
submitting an offer shall quote a fixed interest rate per annum without
reference to the Eurocurrency Rate, (D) maturity date for repayment of each
Uncommitted Advance to be made as part of such Uncommitted Borrowing (which
maturity date may not be earlier than one (1) day, or later than 270 days
after the date of the proposed Uncommitted Borrowing or later than the
Termination Date in the case of a Fixed Rate Uncommitted
17
Borrowing, and which shall be one, two, three or six months, subject to the
limitations set forth in the definition of "Interest Period" in the case of
a Eurocurrency Rate Uncommitted Borrowing) and whether such Uncommitted
Advance may be prepaid, and if so, whether with or without penalty, (E)
interest payment date or dates relating thereto, (F) Borrower and (G) other
material terms to be applicable to such Uncommitted Borrowing. The
Administrative Agent shall promptly notify each Bank of its receipt of each
such Notice of Uncommitted Borrowing by sending each Bank a copy thereof.
"Request Deadline" means (x) in the case of a Fixed Rate Uncommitted
Borrowing, 4:00 P.M. (Chicago time) on the Business Day prior to the date
of such proposed Uncommitted Borrowing and (y) in the case of a
Eurocurrency Rate Uncommitted Borrowing, 4:00 P.M. (Chicago time) four (4)
Business Days prior to the date of such proposed Uncommitted Borrowing.
(ii) Each Bank shall, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Uncommitted Advances to such Borrower
as part of such proposed Uncommitted Borrowing at a rate or rates of
interest specified by such Bank, in its sole discretion, by notifying the
Administrative Agent not later than the applicable Quote Deadline of the
minimum amount (if any) and maximum amount of each Uncommitted Advance
which such Bank would be willing to make as part of such proposed
Uncommitted Borrowing (which amounts may, subject to the proviso to the
first sentence of this Section 2.03(a), exceed such Bank's Commitment, if
any), the Uncommitted Borrowing Margin or Margins to be applied in the
determination of the rate or rates of interest therefor (or, if the Notice
of Uncommitted Borrowing shall have requested that fixed rates per annum be
quoted, the fixed rate or rates per annum therefor) and such Bank's
Applicable Lending Office with respect to such Uncommitted Advance. If any
Bank shall elect not to make such an offer, such Bank shall so notify the
Administrative Agent before the applicable Quote Deadline, and such Bank
shall not be obligated to, and shall not, make any Uncommitted Advance as
part of such Uncommitted Borrowing; provided that the failure by any Bank
to give such notice shall not cause such Bank to be obligated to make any
Uncommitted Advance as part of such proposed Uncommitted Borrowing. The
Administrative Agent shall promptly notify the Company and, if applicable,
the applicable Borrowing Subsidiary of each Bank's response pursuant to
this paragraph (ii); provided, that if Bank One shall elect to make an
offer under this paragraph (ii), such offer shall be delivered to the
Company and, if applicable, the Borrowing Subsidiary not later than
one-half hour prior to the applicable Quote Deadline. Each Borrower shall
be entitled to assume that each quote of an Uncommitted Borrowing Margin or
a fixed rate per annum by a Bank includes, and such Bank shall not be
entitled to claim as additional interest or costs under Section 2.08 or
otherwise, any costs to such Bank in the nature of a reserve requirement,
assessment or other charge in connection with the Uncommitted Advance to
which such quote relates, except that such Bank shall be entitled to claim
increased costs and additional compensation under Section 2.12(a) and (b)
and Section 2.18, but solely with respect to the changes described in such
provisions that occur after the date such Uncommitted Advance is made.
"Quote Deadline" means, (x) in the case of a Fixed Rate Uncommitted
Borrowing, 9:00 A.M. (Chicago time) on the date of such proposed
Uncommitted Borrowing and (y) in the case of a Eurocurrency Rate
Uncommitted Borrowing,
18
9:00 A.M. (Chicago time) three Business Days prior to the date of such
proposed Uncommitted Borrowing.
(iii) Such Borrower, or the Company on behalf of such Borrower, shall,
in turn, before the applicable Acceptance Deadline, either
(A) cancel, without incurring an obligation on the part of such
Borrower or the Company to indemnify for losses, costs or expenses
under Section 2.02(d), such Uncommitted Borrowing by giving the
Administrative Agent notice to that effect, in which case such
Uncommitted Borrowing shall not be made, or
(B) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (ii) above, in its sole discretion but in any
event in ascending order of the fixed rates of interest or Uncommitted
Borrowing Margins (as applicable) offered by all of the Banks
responding to such Notice of Uncommitted Borrowing, by giving notice
to the Administrative Agent of the relevant Banks and the respective
amounts of each Uncommitted Advance (each of which amounts shall be
equal to or greater than the minimum amount, and equal to or less than
the maximum amount, offered to be made by the respective Bank for such
Uncommitted Advance pursuant to Section 2.02(a)(ii) above) and reject
any remaining offers made by Banks pursuant to such Section by giving
the Administrative Agent notice to that effect. The Company (either
for itself or on behalf of a Borrowing Subsidiary) may not accept
offers which, in the aggregate, exceed the requested Uncommitted
Borrowing specified in the applicable Notice of Uncommitted Borrowing.
If two or more Banks bid at the same Uncommitted Borrowing Margin or
fixed rate of interest, as the case may be, and the amount of accepted
offers is less than the aggregate amount of such offers, the amount to
be borrowed from such Banks as part of such Uncommitted Borrowing
shall be allocated pro rata on the basis of the maximum amount offered
by each such Bank at such fixed rates or Uncommitted Borrowing Margins
in connection with such Uncommitted Borrowing.
The Administrative Agent shall promptly notify the Banks of each notice it
receives pursuant to this paragraph (iii). "Acceptance Deadline" means, (x) in
the case of an Uncommitted Borrowing to be denominated in Dollars, 10:00 A.M.
(Chicago time) on the date of such proposed Uncommitted Borrowing and (y) in the
case of an Uncommitted Borrowing to be denominated in an Alternative Currency,
4:00 P.M. (Chicago time) three Business Days prior to the date of such proposed
Uncommitted Borrowing.
(iv) If such Borrower accepts, or the Company accepts on such
Borrower's behalf, one or more of the offers made by any Bank or Banks
pursuant to Section 2.03(a)(iii)(B) above, the Administrative Agent shall
in turn promptly notify (A) each Bank that has made an offer pursuant to
Section 2.03(a)(ii) of the date and aggregate amount of such Uncommitted
Borrowing and whether or not any offer or offers so made
19
by such Bank have been accepted by such Borrower, (B) each Bank that is to
make an Uncommitted Advance as a part of such Uncommitted Borrowing, of the
amount of each Uncommitted Advance to be made by such Bank as part of such
Uncommitted Borrowing, and (C) each Bank that is to make an Uncommitted
Advance as part of such Uncommitted Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in Article III. Each Bank that is to
make an Uncommitted Advance as part of such Uncommitted Borrowing shall,
before 1:00 P.M. (Chicago time) on the date of such Uncommitted Borrowing
specified in the notice received from the Administrative Agent pursuant to
clause (A) of the preceding sentence or any later time when such Bank shall
have received notice from the Administrative Agent pursuant to subclause
(C) of the preceding sentence, make available to the Administrative Agent
at the Administrative Agent's Domestic Lending Office, in federal or
otherwise immediately available funds, such Bank's portion of such
Uncommitted Borrowing. After the Administrative Agent receives such funds
and when the applicable conditions set forth in Article III have been
fulfilled, the Administrative Agent will make such funds available to the
applicable Borrower at the Administrative Agent's aforesaid address.
Promptly after (x) each Uncommitted Borrowing, the Administrative Agent
will notify each Bank of the amount and date of the Uncommitted Borrowing
and the maturity date thereof and the Available Commitment of each Bank
after giving effect to such Uncommitted Borrowing and (y) the prepayment of
any Uncommitted Borrowing by or on behalf of such Borrower, the
Administrative Agent will notify each Bank of the amount and date of each
such prepayment and the Available Commitment of each Bank after giving
effect thereto.
(b) Each Uncommitted Borrowing shall be in an aggregate amount of not less
than $25,000,000 or an integral multiple of $1,000,000 in excess thereof, or if
the requested currency for such Advance is not Dollars, the equivalent of such
amount (determined in accordance with Section 2.16) or multiple in the requested
Alternative Currency.
(c) Within the limits and on the conditions set forth in this Section 2.03,
each Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (d) below, and reborrow under this Section 2.03; provided
that an Uncommitted Borrowing shall not be made within three Business Days of
any other Uncommitted Borrowing.
(d) Each Borrower shall repay to the Administrative Agent, for the account
of each Bank which has made an Uncommitted Advance to such Borrower, on the
maturity date of each such Uncommitted Advance (such maturity date being that
specified for repayment of such Uncommitted Advance in the related Notice of
Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above) the then
unpaid principal amount of such Uncommitted Advance. A Borrower shall not have
the right to prepay any principal amount of any Uncommitted Advance without the
consent of the Bank making such Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount of each
Uncommitted Advance made to it, from the date of such Uncommitted Advance to the
date the principal amount of such Uncommitted Advance is repaid in full, at the
rate of interest for such Uncommitted Advance specified by the Bank making such
Uncommitted Advance in its notice with respect thereto delivered pursuant to
Section 2.03(a)(ii) above, payable on the interest
20
payment date or dates specified for such Uncommitted Advance in the related
Notice of Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above.
(f) The Borrower of any Uncommitted Advance shall, promptly upon
request by the Bank making such Uncommitted Advance (either in the quote
delivered by such Bank pursuant to Section 2.03(a)(ii) or by notice to the
Administrative Agent), execute and deliver to the Administrative Agent an
Uncommitted Note payable to the order of such Bank in a principal amount equal
to the principal amount of such Uncommitted Advance and otherwise on such terms
as were agreed to for such Uncommitted Advance in accordance with Section 2.03.
SECTION 2.04 Facility Fee and Utilization Fee. (a) The Company and each
Borrowing Subsidiary jointly and severally agree to pay to the Administrative
Agent, for the account of each Bank, a facility fee ("Facility Fee") on the
average daily Commitment of such Bank from the date hereof until the Termination
Date, payable in arrears on the first Business Day of each January, April, July
and October during the term of such Bank's Commitment, commencing January 2,
2003, and on the Termination Date, at the Applicable Facility Fee Rate;
provided, that if any Bank continues to have Advances outstanding hereunder
after the termination of its Commitment (including, without limitation, during
any period when Advances may be outstanding but new Advances may not be borrowed
hereunder), then such Facility Fee shall continue to accrue on the aggregate
principal amount of the Advances owed to such Bank until such Advances are
repaid in full.
(b) To the extent, and for so long as, the average daily aggregate
outstanding principal amount of Advances in any calendar quarter exceeds
one-half of the average daily aggregate outstanding Commitments during such
calendar quarter, the Company and each Borrowing Subsidiary, jointly and
severally, agree to pay to each Bank a utilization fee (the "Utilization Fee")
equal to the Applicable Utilization Fee Rate times the aggregate principal
amount of such Bank's average daily outstanding Advances during such calendar
quarter. The Utilization Fee shall be payable on each date the Facility Fee is
payable.
(c) Notwithstanding the foregoing, (i) any Facility Fee or Utilization
Fee accrued with respect to any Commitment of a Defaulting Bank during the
period prior to the time such Bank became a Defaulting Bank and unpaid at such
time shall not be payable by the Borrowers so long as such Bank shall be a
Defaulting Bank, except to the extent such Facility Fee or Utilization Fee was
due and payable prior to such time, and (ii) no Facility Fee or Utilization Fee
shall accrue on the Commitment of a Defaulting Bank so long as such Bank is a
Defaulting Bank.
SECTION 2.05 Reduction and Termination of the Commitments. (a) The Company
shall have the right, upon at least four (4) Business Days' notice to the
Administrative Agent to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Banks, provided that the aggregate
amount of the Commitments of the Banks shall not be reduced to an amount which
is less than the aggregate principal amount of the Uncommitted Advances then
outstanding and provided, further, that each partial reduction shall be in an
aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess
thereof.
21
(b) Provided that no Event of Default shall have occurred and be
continuing, the Company may at any time replace any Bank, in whole but not in
part, by (i) giving such Bank and the Administrative Agent not less than ten
(10) Business Days' prior notice thereof, which notice shall be irrevocable and
effective only when received by such Bank and the Administrative Agent and shall
specify the effective date of such replacement, and (ii) effecting an assignment
of all of the Bank's Commitment and Advances in accordance with Section 9.03.
SECTION 2.06 Payment; Conversion and Continuation.
(a) On the Termination Date, the Borrowers shall repay to the
Administrative Agent for the account of the Banks, the entire unpaid principal
amount of the Advances made by each Bank.
(b) Any Borrower may elect (x) to convert Base Rate Advances or any
portion thereof to Eurocurrency Rate Advances, (y) to convert Eurocurrency Rate
Advances or any portion thereof into Base Rate Advances, or (z) to continue any
Eurocurrency Rate Advance or any portion thereof for an additional Interest
Period; provided, however, that the aggregate amount of Base Rate Advances being
converted into Eurocurrency Rate Advances or of Eurocurrency Rate Advances being
continued shall, in the aggregate, equal $20,000,000 or an integral multiple of
$1,000,000 in excess thereof. The applicable Interest Period for the
continuation of any Eurocurrency Rate Advance shall commence on the day on which
the immediately-preceding Interest Period expires. Each conversion or
continuation shall be allocated among the Committed Advances of each Bank (other
than Banks which had not made the Advance so converted or continued) in
accordance with its Pro Rata Share of the amount so converted or continued. Each
such election shall be in substantially the form of Exhibit E (a "Notice of
Conversion or Continuation") and shall be made by giving the Administrative
Agent notice by 10:00 a.m. (Chicago time) on the date of such conversion or
continuation, in the case of a conversion to a Base Rate Advance, giving the
Administrative Agent at least three Business Days' prior written notice thereof
in the event of a conversion to or continuation of a Eurocurrency Advance
specifying, in each case (i) whether a conversion or continuation is to take
place, (ii) what Advances are to be converted or continued, and if converted,
the Type of Advance to which it is to be converted, (iii) the amount of the
conversion or continuation, (iv) the Interest Period therefor and (v) in the
case of a conversion, the date of conversion (which date shall be a Business
Day). The Administrative Agent shall promptly notify each Bank of its receipt of
a Notice of Conversion or Continuation by sending such Bank a copy thereof. If,
within the time period required under the terms of this Section 2.06(b), the
Administrative Agent does not receive a Notice of Conversion or Continuation
from the applicable Borrower containing an election to continue or convert any
Advances for an additional Interest Period, then, upon the expiration of the
Interest Period therefor, such Advances will be automatically converted to Base
Rate Advances.
SECTION 2.07 Interest on Committed Advances. Each Borrower shall pay
interest on the unpaid principal amount of each Committed Advance made by each
Bank to it from the date of such Committed Advance until such principal amount
shall be paid in full, at the following rates per annum:
22
(a) Base Rate Advances. During such period as such Committed Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable quarterly in arrears on the first Business Day
of each January, April, July and October, commencing January 2, 2003, and on the
Termination Date. The Administrative Agent shall give notice to the Company and
the applicable Borrower (if other than the Company) and each Bank of any change
in the Base Rate promptly after such change occurs, but the Administrative
Agent's failure to give such notice shall not affect the obligation of the
Company or such Borrower to pay interest at such rate when it becomes due and
payable.
(b) Eurocurrency Rate Advances. During such period as such Committed
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Committed Advance to the sum of the
Eurocurrency Rate for such Interest Period plus the Applicable Margin, payable
on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day which occurs during such
Interest Period every three months from the first day of such Interest Period
and on the date such Eurocurrency Rate Advance shall be converted or paid in
full.
(c) Default Interest. Notwithstanding the foregoing provisions of this
Section 2.07, any amount of principal and fees and, to the extent permitted by
law, interest, that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at
all times to 2% per annum above (i) in the case of principal, the rate of
interest otherwise thereto from time to time in accordance with the terms
hereof, and (ii) in the case of interest and fees, the Base Rate in effect from
time to time.
SECTION 2.08 Additional Interest on Eurocurrency Rate Advances. Each
Borrower shall pay to each Bank, so long as and to the extent such Bank shall be
required under regulations of the Board of Governors of the Federal Reserve
System (or any similar authority outside the United States, in the case of
Committed Advances in Alternative Currencies) to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities (or
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurocurrency Rate Advances in the applicable Alternative
Currency is determined) and such Bank's performance under this Agreement (and
other like agreements) shall have given rise to additional reserve requirements
for such Bank thereunder, additional interest on the unpaid principal amount of
each Committed Advance constituting a Eurocurrency Rate Advance of such Bank
made to such Borrower, from the date of such Committed Advance until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurocurrency Rate for the
applicable Interest Period for such Committed Advance from (ii) the rate
obtained by dividing such Eurocurrency Rate by a percentage equal to 100% minus
the Eurocurrency Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such Committed Advance.
Such Bank shall, not later than the last day of the applicable Interest Period,
provide notice to the Administrative Agent, the Company and, if other than the
Company, the applicable Borrower of any such additional interest arising in
connection with such Committed Advance. Such additional interest so notified on
a timely basis by any Bank shall be payable to the
23
Administrative Agent for the account of such Bank on the dates specified for
payment of interest for such Committed Advance in Section 2.07.
SECTION 2.09 Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Company
and the applicable Borrower (if other than the Company) and each of the Banks of
the applicable interest rate determined by the Administrative Agent for purposes
of Section 2.07(a) or (b).
(b) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Committed Borrowing shall be reduced,
by payment, prepayment or otherwise, to less than $20,000,000, such Advances
shall automatically convert into Base Rate Advances and such conversion shall be
subject to Section 2.11.
SECTION 2.10 Prepayments. A Borrower may prepay, on any Business Day
following notice by 11:00 a.m. (Chicago time) on such Business Day to the
Administrative Agent (in the case of Base Rate Advances) and on three Business
Days' prior notice to the Administrative Agent (in the case of Eurocurrency Rate
Advances), each Committed Borrowing made to such Borrower, in whole or in part.
Such notice shall include the proposed date and aggregate principal amount of
such prepayment, and if such notice is given, such Borrower shall prepay such
principal amount, together with accrued interest to the date of such prepayment
on the principal amount prepaid. Any amounts payable, if any, pursuant to
Section 2.11 hereof in connection with any prepayment shall be paid on the date
of such prepayment; provided, however, that each partial prepayment shall be in
an aggregate principal amount of not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof. Subject to Sections 2.12 and 2.13,
each prepayment of a Committed Borrowing shall be made to each Bank in
accordance with such Bank's Pro Rata Share thereof (other than any Banks which
did not make such Committed Borrowing). The Company shall, on the first Business
Day of each January, April, July and October, if the aggregate outstanding
principal Dollar Amount of all Advances, calculated by the Administrative Agent
on the seventh Business Day prior to such payment date and reported to the
Company by the fifth Business Day prior to such payment date, exceeds (as the
result of fluctuations in applicable foreign exchange rates or otherwise) 105%
of the then aggregate amount of the Banks' Commitments (calculated as
aforesaid), prepay a Committed Borrowing or Borrowings (in whole or in part, and
in any case as selected by the Company) in an aggregate Dollar Amount
(calculated as aforesaid, and rounded upward, if necessary, to the nearest
$1,000,000) equal to the excess of:
(i) the aggregate principal Dollar Amount (calculated as
aforesaid) of Advances outstanding, over
(ii) the then aggregate amount of the Banks' Commitments
(calculated as aforesaid).
Each prepayment of any Committed Borrowing (in whole or in part) made pursuant
to this Section 2.10 shall be without premium or penalty, but shall be subject
to the provisions of Section 2.11. Any mandatory prepayment of a Committed
Borrowing shall be made to the Administrative Agent for the account of each Bank
based on such Bank's Pro Rata Share of such
24
Committed Borrowing and shall include accrued and unpaid interest on the
principal amount prepaid and all amounts owing under Section 2.11.
SECTION 2.11 Funding Indemnification. If any payment of principal of any
Advance (other than a Base Rate Advance) is made other than on the last day of
an Interest Period for such Advance, as a result of acceleration of the maturity
of the Advances pursuant to Section 6.01 or for any other reason, or if any
Eurocurrency Rate Advance is converted to a Base Rate Advance pursuant to
Section 2.13(b) on any day other than the last day of an Interest Period for
such Eurocurrency Rate Advance, the applicable Borrower shall, upon demand by
any Bank (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or conversion, including without
limitation any loss (excluding loss of anticipated profits), cost or expense
reasonably incurred as a result of the liquidation or re-employment of deposits
or other funds acquired by such Bank to fund or maintain such Advance.
SECTION 2.12 Increased Costs and Reduced Return. (a) Subject to the
limitation in Section 2.03(a)(ii), if, due to either (i) the introduction of or
any change (other than any change by way of imposition or increase of reserve
requirements, in the case of Eurocurrency Rate Advances, included in the
Eurocurrency Rate Reserve Percentage), after the date hereof, in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) issued after the date hereof, there
shall be any increase in the cost to any Bank of agreeing to make, making,
funding or maintaining Eurocurrency Rate Advances (including, without
limitation, any conversion of any Advance denominated in an Alternative Currency
other than the Euro into an Advance denominated in Euro), by an amount
reasonably deemed by such Bank to be material, then from time to time, within
ten days after demand by such Bank (with a copy of such demand to the
Administrative Agent), such Borrower shall pay to the Administrative Agent for
the account of such Bank additional amounts sufficient to compensate such Bank
for such increased cost; provided that no Borrower shall be obligated to pay any
such amount to the extent such amount results from a change, guideline or
request which took effect more than 90 days prior to the date of such demand.
(b) Subject to the limitation in Section 2.03(a)(ii), if any Bank
shall have determined that the adoption, after the date hereof, of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive issued after the date
hereof regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance by an amount reasonably
deemed by such Bank to be material, then from time to time, within ten days
after demand by such Bank (with a copy of such demand to the Administrative
Agent), the Company shall pay to the Administrative Agent for the account of
such Bank such additional amount or amounts as will compensate such Bank, in
light of such circumstances, to the extent such Bank reasonably
25
determines such reduction to be allocable to the existence of such Bank's
Commitment; provided that no Borrower shall be obligated to pay any such amount
to the extent such amount results from an adoption, change, request or directive
which took effect or was issued more than 90 days prior to the date of such
demand.
(c) Each Bank will promptly notify the Administrative Agent and the
Company of any event of which it has knowledge, occurring after the date hereof,
which would entitle such Bank to compensation pursuant to this Section 2.12. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall create a
rebuttable presumption as to the correctness of such additional amount or
amounts. Each Bank agrees not to request any payment under this Section 2.12
unless similar requests are then generally being made by such Bank of other
borrowers similarly situated, and to use a reasonable basis for calculating
amounts allocable to its Commitment hereunder.
SECTION 2.13 Illegality. (a) If any Bank shall determine (which
determination shall be rebuttably presumed correct as to all parties) at any
time that the making or continuance of its Eurocurrency Rate Advances has become
unlawful because of the introduction of or any change in or in the
interpretation of any law or regulation or because of the assertion of
unlawfulness by any central bank or other governmental authority, then, in any
such event, such Bank shall give prompt notice (by telephone confirmed in
writing) to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each Borrower and the other
Banks).
(b) Upon the giving of the notice to the Company referred to in
subsection (a) above, if the affected Advances are then outstanding, each
Borrower shall, upon at least one Business Day's written notice to the
Administrative Agent and the affected Bank, or if permitted by applicable law no
later than the date permitted thereby, in such Borrower's sole discretion,
either (i) prepay the principal amount of all outstanding Advances of such Bank
to which such notice relates, together with accrued interest thereon to the date
of payment, or (ii) convert each such Advance into a Base Rate Advance
denominated in Dollars and, in each case, be obligated to reimburse the Banks in
respect thereof pursuant to Section 2.11 hereof. If more than one Bank gives
notice pursuant to Section 2.13(a) at any time, then all outstanding Advances of
the affected Type or currency of such Banks must be treated in the same manner
by the Borrowers pursuant to this subsection 2.13(b) and the Banks' obligations
to make, convert or continue Eurocurrency Rate Advances shall be suspended until
the Administrative Agent notifies the Borrowers that the circumstances causing
such suspension no longer exist.
SECTION 2.14 Payments and Computations. (a) The Company and each Borrowing
Subsidiary shall make each payment hereunder and under the Notes without
set-off, counterclaim or other deduction by causing a wire transfer of
immediately-available funds to be initiated to the Administrative Agent in an
amount equal to such payment not later than 12:00 noon (Chicago time) on the day
when due from the Company or such Borrowing Subsidiary. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than amounts payable
pursuant to Sections 2.03, 2.05(b), 2.08, 2.11, 2.12, 2.15, 2.18 or 2.19) to the
Banks for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other
26
amount payable to any Bank to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. All such payments shall be made in Dollars, except that payments of
principal of and interest on Borrowings in an Alternative Currency shall be made
in such Alternative Currency or, where such Alternative Currency has converted
to the Euro, in the Euro; provided that if the applicable Borrower fails to make
any payment of principal or interest with respect to any Borrowing in an
Alternative Currency (including the Euro) on the due date thereof because such
Alternative Currency has ceased to be freely transferable and convertible into
Dollars in the international currency and exchange markets, such failure shall
not constitute an Event of Default or an event which would constitute an Event
of Default but for the requirement that notice be given or time elapse or both,
if such Borrower pays the equivalent in Dollars of such payment on the due date
thereof. In addition to any such Dollar payment, such Borrower agrees to pay to
each affected Bank an indemnity payment within five Business Days after such
Borrower shall have received a certificate from such Bank setting forth in
reasonable detail the amount of any loss, cost, damage or expense suffered by
such Bank as a consequence of such inability to make any such payment in such
Alternative Currency on the due date thereof. Each Bank agrees to use reasonable
efforts to avoid or minimize all such loss, cost, damage or expense.
(b) All computations of interest based on the Base Rate, or the
Eurocurrency Rate applicable to Borrowings denominated in Sterling, shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurocurrency Rate
(as to all other currencies) or the Federal Funds Rate, all computations of
interest pursuant to Section 2.08 and all computations of the Facility Fee and
the Utilization Fee shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent
(or, in the case of Section 2.08, by a Bank) of an interest rate or fee owing
hereunder shall create a rebuttable presumption as to the correctness of such
determination.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent such
Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
27
SECTION 2.15 Sharing of Payments, Etc. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Committed Advances made by it (other than
pursuant to Sections 2.08, 2.11, 2.12, 2.13(b), 2.18 or 2.19) in excess of its
ratable share of payments on account of the Committed Advances obtained by all
the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Committed Advances made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the purchase
price to the extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank with
respect to Advances made to such Borrower pursuant to this Section 2.15 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16 Currency Equivalents. (a) For purposes of this Article II, (i)
the equivalent in Dollars of any Alternative Currency shall be determined by
using the arithmetical mean of the buy and sell spot rates at which Bank One's
principal office in London exchanges Dollars for such Alternative Currency in
the interbank market in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined, (ii) the
equivalent in any Alternative Currency of any other Alternative Currency shall
be determined by using the arithmetical mean of the buy and sell spot rates at
which Bank One's principal office in London exchanges such Alternative Currency
for the equivalent in such other Alternative Currency in London at 11:00 A.M.
(London time) two Business Days prior to the date on which such equivalent is to
be determined, and (iii) the equivalent in any Alternative Currency of Dollars
shall be determined by using the arithmetical mean of the buy and sell spot
rates at which Bank One's principal office in London exchanges such Alternative
Currency for Dollars in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined. The equivalent
in Dollars of each Eurocurrency Rate Advance made in an Alternative Currency
shall be recalculated hereunder on each day that it is necessary to determine
the unused portion of each Bank's Commitment, or any or all of the Advances on
such date.
(b) If for the purpose of obtaining a judgment in any court with
respect to any obligation of a Borrower hereunder, it shall become necessary for
the Administrative Agent or any Bank entitled to receive payments hereunder to
convert any amount into a currency other than the currency denominated hereunder
for such obligation, then such conversion shall be made on the basis of rates
(the "Exchange Rates") determined in the manner described in subsection (a)
above (or, if the applicable currency to be converted is not at the time of
conversion available in the interbank market in London, then in such other
interbank market as the Administrative Agent shall determine to have adequate
availability of such currency) and the date with respect to which such an
equivalent is to be determined shall be the first Business Day preceding the
date on which final judgment is entered. If pursuant to any such judgment
28
conversion is to be made with respect to a date other than the date referred to
above, and there shall occur a change between the Exchange Rates in effect on
such date and the Exchange Rates in effect on the date of payment, (i) the
applicable Borrower agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is the amount in such other currency
which, when converted at the Exchange Rates as in effect on the date of payment
or distribution, is the amount then due hereunder in the relevant currency and
(ii) such Borrower shall not be required to pay any amount in excess of the
amount determined to be payable in connection with such obligation, calculated
on the basis of the Exchange Rates in effect on the first Business Day preceding
the date on which final judgment is entered. Any amount due from a Borrower
under this subsection (b) shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder.
SECTION 2.17 Borrowing Subsidiaries. The Company may at any time or from
time to time add as a party to this Agreement any Subsidiary of the Company to
be a "Borrowing Subsidiary" hereunder by causing such Subsidiary to execute and
deliver a duly completed Assumption Letter to the Administrative Agent, with the
written consent of the Company at the foot thereof. Upon such execution,
delivery and consent such Subsidiary shall for all purposes be a party hereto as
a Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on all Advances made to any
Borrowing Subsidiary under this Agreement shall have been paid in full and all
other obligations of such Borrowing Subsidiary shall have been fully performed,
such Borrowing Subsidiary may, by not less than five Business Days' prior notice
to the Administrative Agent (which shall promptly notify the Banks thereof),
terminate its status as a "Borrowing Subsidiary."
SECTION 2.18 Taxes. (a) Any and all payments by a Borrower hereunder or
under the Notes shall be made in accordance with Section 2.14, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Administrative Agent, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank or the Administrative Agent is organized or any
political subdivision thereof and taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Bank's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.18) such Bank or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
29
(c) Each Borrower will indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.18) paid by such Bank or the Administrative Agent
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted; provided, that the Borrowers shall have no obligation under
this subsection (c) to indemnify any Bank or the Administrative Agent if a
Borrower shall have performed its obligations under subsection (a) and (b),
thereby providing such Bank or the Administrative Agent (as the case may be) the
wherewithal to make payment, or demonstrate that payment has been made, of any
such Taxes or Other Taxes, and such Bank or the Administrative Agent (as the
case may be) shall not have effected such payment or made such demonstration of
payment on a timely basis to the relevant taxing authorities. This
indemnification shall be made to the Administrative Agent for the account of
such Bank or the Administrative Agent (as the case may be) within 30 days from
the date such Bank or the Administrative Agent makes written demand therefor
(with a copy, in the case of a demand by a Bank, of such demand to the
Administrative Agent).
(d) Notwithstanding the foregoing, unless, prior to the date of the
initial Committed Borrowing (in the case of a Bank listed on Schedule I hereto),
and prior to the effective date of the assignment agreement by which it became a
Bank (in the case of a Bank that became a Bank pursuant to such assignment
agreement), and, in respect of borrowings by a Borrowing Subsidiary organized
under the laws of a jurisdiction outside the United States, prior to the date on
which such Borrowing Subsidiary became a Borrower pursuant to Section 2.17, and
in each case from time to time thereafter, if requested by any Borrower,
(i) each Bank organized under the laws of a jurisdiction outside
the United States shall have provided the Company with the forms prescribed
by the Internal Revenue Service of the United States certifying as to such
Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank
hereunder or other documents satisfactory to the Company which shall
indicate that all payments to be made to such Bank hereunder are not
subject to United States withholding tax or are subject to such taxes at a
rate reduced to zero by an applicable tax treaty, neither the Company nor
any other Borrower shall have any obligation under the last sentence of
Section 2.18(a) to make any payments to or for the benefit of such Bank in
excess of the amounts otherwise payable under this Agreement, and
(ii) each Bank organized under the laws of a jurisdiction outside
the jurisdiction where any Borrowing Subsidiary is incorporated shall have
taken all steps prescribed by the applicable governmental authority in the
jurisdiction where such Borrowing Subsidiary is located so that such Bank
is exempt from applicable withholding taxes with respect to all payments to
be made to such Bank hereunder or so that all payments to be made to such
Bank hereunder are not subject to applicable withholding taxes or are
subject to such taxes at a rate reduced to zero by an applicable tax
treaty, neither the Company nor any other Borrower shall have any
obligation under the last sentence of Section 2.18(a) to make any payments
to or for the benefit of such Bank in excess of the amounts otherwise
payable under this Agreement; provided, however, that
30
the applicable Borrower shall make the payments required by the last
sentence of Section 2.18(a) if the obligation to withhold arises from
a change in applicable law after the date hereof (or, with respect to
payments to a new Applicable Lending Office designated pursuant to
Section 2.20, after the date such Bank designates such new Applicable
Lending Office).
Unless the applicable Borrower has received forms or other documents, including
Form W-8ECI, Form W-8BEN or any other applicable tax forms from the United
States or any other applicable jurisdiction, such forms to be satisfactory to
the Company, indicating that payments hereunder are not subject to any
withholding tax or are subject to such tax at a rate reduced to zero by an
applicable tax treaty, the applicable Borrower shall withhold taxes from such
payments at the applicable statutory rate in the case of payments to or for any
Bank organized under the laws of a jurisdiction outside the United States (or in
the case of a Borrowing Subsidiary incorporated outside the United States, any
Bank organized under the laws outside of the jurisdiction where such Borrowing
Subsidiary is incorporated). Should a Bank become subject to Taxes because of
its failure or inability to deliver a form required hereunder, the Company shall
take such steps not requiring the expenditure of money as the Bank shall
reasonably request to assist the Bank to recover such Taxes.
SECTION 2.19 Defaulting Banks. (a) If at any time (i) any Bank shall be a
Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the
Borrower and (iii) the Borrower shall be required to make any payment hereunder
or under any Note to or for the account of such Defaulting Bank, then the
Borrower may, so long as no Event of Default shall have occurred and be
continuing at such time and to the fullest extent permitted by applicable law,
set off and otherwise apply the amount owed by the Borrower to or for the
account of such Defaulting Bank against the obligation of such Defaulting Bank
to make such Defaulted Advance. If the Borrower shall so set off and otherwise
apply the amount owed by the Borrower to or for the account of such Defaulting
Bank against the obligation of such Defaulting Bank to make any such Defaulted
Advance on any date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the Notes an Advance by
such Defaulting Bank made on the date of such setoff. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01 or
Section 2.03(a), as the case may be, even if the other Advances comprising such
Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed
to be made pursuant to this Section 2.19(a). The Borrower shall notify the
Administrative Agent at any time the Borrower makes a setoff under this Section
2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and
the Defaulted Advance required to be made by such Defaulting Bank and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this Section 2.19(a). Any part of such payment otherwise required to
be made by the Borrower to or for the account of such Defaulting Bank that is
paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this Section 2.19(a), shall be applied by
the Administrative Agent as specified in Section 2.19(b) or 2.19(c).
(b) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such
Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any
of the other Banks and
31
(iii) the Borrower shall make any payment hereunder or under any Note to the
Administrative Agent for the account of such Defaulting Bank, then the
Administrative Agent may, on its behalf or on behalf of such other Banks and to
the fullest extent permitted by applicable law, apply at such time the amount so
paid by the Borrower to or for the account of such Defaulting Bank to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. If the Administrative Agent shall so apply any such amount to
the payment of any such Defaulted Amount on any date, the amount so applied by
the Administrative Agent shall constitute for all purposes of this Agreement and
the Notes payment to such extent of such Defaulted Amount on such date. Any such
amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Banks, ratably in accordance with their respective portions of such Defaulted
Amounts payable at such time to the Administrative Agent and such other Banks
and, if the amount of such payment made by the Borrower shall at any time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Banks, in the following order of priority:
(A) first, to the Administrative Agent for any Defaulted
Amounts owing to the Administrative Agent (solely in its capacity
as Administrative Agent) at such time; and
(B) second, to the other Banks for any Defaulted Amounts
owing to the other Banks (solely in their capacity as Banks) at
such time, ratably in accordance with such respective Defaulted
Amounts owing to each other Bank (solely in its capacity as a
Bank) at such time.
Any part of such payment made by the Borrower for the account of such Defaulting
Bank remaining, after giving effect to the amount applied by the Administrative
Agent pursuant to this Section 2.19(b), shall be applied by the Administrative
Agent as specified in Section 2.19(c).
(c) If at any time, (i) any Bank shall be a Defaulting Bank, (ii) such
Defaulting Bank shall not owe a Defaulted Advance or a Defaulted Amount and
(iii) the Borrower, the Administrative Agent or any other Bank shall be required
to pay or to distribute any amount hereunder or under any Note to or for the
account of such Defaulting Bank, then the Borrower or such other Bank shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this Section 2.19(c) shall be deposited by
the Administrative Agent in an account with Bank One, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
Section 2.19(c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Bank One's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this Section 2.19(c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Bank and to pay any amount payable by such
32
Defaulting Bank hereunder to the Administrative Agent or any other Bank, as and
when such Advances or such amounts are required to be made or paid and, if the
amount so held in escrow shall any time be insufficient to make and pay all such
Advances and all such amounts required to be made or paid at such time, in the
following order of priority:
(A) first, to the Administrative Agent for any amounts due
and payable by such Defaulting Bank to the Administrative Agent
hereunder (solely in its capacity as Administrative Agent) at
such time;
(B) second, to the other Banks for any amounts due and
payable by such Defaulting Bank to the other Banks hereunder
(solely in their capacity as Banks) at such time, ratably in
accordance with such respective amounts due and payable to each
other Bank (solely in its capacity as Bank) at such time; and
(C) third, to the Borrower for any Advances required to be
made by such Defaulting Bank pursuant to the Commitment of such
Defaulting Bank at such time.
If such Defaulting Bank shall, at any time, cease to be a Defaulting Bank,
any funds held by the Administrative Agent in escrow at such time with respect
to such Defaulting Bank shall be distributed by the Administrative Agent to such
Defaulting Bank and applied by such Defaulting Bank to the amounts owing to such
Defaulting Bank at such time under this Agreement in accordance with the terms
of this Agreement.
(d) The rights and remedies against a Defaulting Bank under this
Section 2.19 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Bank with respect to any Defaulted Advance and that
the Administrative Agent or any other Bank may have against such Defaulting Bank
with respect to any Defaulted Amount.
SECTION 2.20 Mitigation. Any Bank claiming any additional amounts payable
pursuant to Sections 2.12 or 2.18 or subject to Section 2.13 shall use its
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts which may thereafter accrue under Sections 2.12 or 2.18
or would avoid the unavailability of Eurocurrency Rate Advances under Section
2.13 and would not, in any such case, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
SECTION 2.21 European Economic and Monetary Union. (a) Advances in the
Euro. If any Advance is capable of being made in either the Euro or in a
National Currency Unit, then such Advance shall be made in the Euro.
(b) Rounding and Other Consequential Changes. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall, notwithstanding any other provision of this
Agreement and to the extent the Euro has replaced such National
33
Currency Unit, be replaced by a reference to such comparable and convenient
fixed amount or fixed amounts of the Euro as the Administrative Agent may from
time to time reasonably specify.
SECTION 2.22 Increase of Aggregate Commitments. (a) The Company may from
time to time, on the terms set forth below, request that the aggregate amount of
the Commitments be increased to an amount which does not exceed $200,000,000;
provided, however, that an increase in the Commitments hereunder may only be
made at a time when (i) no Event of Default or event which, with notice or the
passage of time or both, would constitute an Event of Default shall have
occurred and be continuing or would result therefrom and (ii) the Public Debt
Rating from S&P is at least BBB- and the Public Debt Rating from ▇▇▇▇▇'▇ is at
least Baa3.
(b) If the Company requests an increase in the aggregate Commitments:
(i) each of the Banks shall be given the opportunity to
participate in the increased aggregate Commitments (x) initially,
ratably in accordance with its Pro Rata Share, and (y) next, to the
extent that the requested increase in the aggregate Commitments is not
fulfilled pursuant to the preceding clause (x) and subject to Section
2.22(d) below, in such additional amounts as any Bank and the Company
agree, and
(ii) if, after each Bank has been afforded an opportunity to
increase its Commitment to satisfy the Company's requested increase,
the aggregate increase in the Commitments offered by the Banks is less
than the Company's requested increase, then the Company shall consult
with the Administrative Agent as to the number, identity and requested
Commitments of additional financial institutions which the Company
may, with the written consent of the Administrative Agent (which
consent shall not be unreasonably withheld) invite to participate in
the aggregate Commitments.
(c) No Bank shall have any obligation to increase its Commitment
pursuant to a request by the Company hereunder. No Bank shall be deemed to have
approved an increase in its Commitment unless such approval is in writing.
Failure on the part of any Bank to respond to a request by the Company within 30
days of such Bank's receipt of notice of such request hereunder shall be deemed
a rejection of such request.
(d) In no event shall any Bank's Commitment, after giving effect to an
increase in its Commitment hereunder, exceed 25% of the aggregate Commitments
under this Agreement.
(e) If the Company and one or more of the Banks (or other financial
institutions) shall agree upon such an increase in the aggregate Commitments
hereunder (i) the Company, the Administrative Agent and each Bank or other
financial institution increasing its Commitment or extending a new Commitment
shall enter into a consent in the form of Exhibit F hereto and (ii) the Company
shall furnish new Notes to each financial institution that is extending a new
Commitment and to each Bank which is increasing its Commitment. Notwithstanding
anything else to the contrary contained in Section 2.06(b), if an increase in
the aggregate Commitments pursuant to this Section 2.22 occurs during an
Interest Period for an
34
outstanding Committed Borrowing, (a) such Committed Borrowing may not be
continued or converted pursuant to Section 2.06(b) and (b) such Committed
Borrowing shall be due and payable at the end of the current Interest Period
applicable thereto, without prejudice to the Company's right, subject to the
terms and conditions of this Agreement, to reborrow all or any portion of the
amount of such Committed Borrowing.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 shall become effective on the first day (the
"Effective Date") on which all of the following conditions precedent have been
satisfied:
(a) The Administrative Agent shall have received the following, in
form and substance reasonably satisfactory to the Administrative Agent and
(except for the Committed Notes) in sufficient copies for the Banks:
(i) This Agreement, executed by the Company, the Administrative
Agent and each of the Banks;
(ii) A Committed Note executed by the Company, payable to each
Bank;
(iii) A certificate of the Secretary of the Company certifying
(A) copies attached thereto of the resolutions of the Board of Directors of
the Company authorizing and empowering certain officers of the Company to
effect such borrowings as such officers may deem necessary or desirable for
proper corporate purposes, subject to the limitations set forth in such
resolutions, (B) copies attached thereto of the Certificate of
Incorporation and by-laws of the Company, and (C) the names and true
signatures of the officers of the Company authorized to sign this Agreement
and the Notes and other documents to be executed and delivered by the
Company hereunder;
(iv) A certificate of a duly authorized officer of the Company,
dated the Effective Date, certifying that as of such date, (A) the
representations and warranties contained in Section 4.01 are correct on and
as of the Effective Date and (B) no event shall have occurred and be
continuing that constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both; and
(v) A favorable opinion of counsel for the Company, substantially
in the form of Exhibit G hereto.
(b) The Company shall have paid all accrued fees and expenses of the
Arranger, the Administrative Agent and the Banks which are due and payable
on the Effective Date (including, without limitation, the reasonable fees
and expenses of counsel for the Arranger and the Administrative Agent);
35
(c) There shall have occurred no material adverse change in the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, since December 31, 2001;
(d) There shall exist no action, suit or proceeding (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries pending
before any court or arbitrator or any governmental body, agency or official, or
to the knowledge of any Responsible Officer of the Company, threatened, that
could reasonably be expected (i) to have a Material Adverse Effect (except as
set forth on Schedule III hereto as of the date hereof) or (ii) to materially
and adversely affect the legality, validity or enforceability of this Agreement
or any Note;
(e) The representations and warranties contained in Section 4.01
shall be correct on and as of the Effective Date, as though made on and as of
such date; and
(f) No event shall have occurred and be continuing which constitutes
an Event of Default or which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
For purposes of determining compliance with the conditions specified above,
each Bank shall be deemed to have consented to, approved and accepted, and to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless
the officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank prior
to the proposed Effective Date, as notified by the Administrative Agent to the
Banks, specifying its objection thereto. The Administrative Agent shall promptly
notify the Banks of the occurrence of the Effective Date.
SECTION 3.02 Conditions Precedent to Initial Advance to Each Borrowing
Subsidiary. The obligation of each Bank to make its initial Advance hereunder to
any Borrowing Subsidiary is subject to the conditions precedent that the
Effective Date shall have occurred and the Administrative Agent shall have
received on or before the day of the initial Borrowing by such Borrowing
Subsidiary the following, each in form and substance reasonably satisfactory to
the Administrative Agent and in sufficient copies for the Banks:
(a) The Assumption Letter executed and delivered by such Borrowing
Subsidiary and containing the written consent of the Company at the foot
thereof, as contemplated by Section 2.17 hereof;
(b) A Committed Note executed by such Borrowing Subsidiary, payable to
each Bank;
(c) Certified copies of the resolutions of the Board of Directors of
such Borrowing Subsidiary approving the Assumption Letter and all other
documents evidencing corporate action and governmental approvals, if any,
required with respect to the Assumption Letter;
(d) A certificate of the Secretary or an Assistant Secretary of such
Borrowing Subsidiary certifying the names and true signatures of the officers of
such Borrowing Subsidiary
36
authorized to sign the Assumption Letter and the other documents to be executed
and delivered by such Borrowing Subsidiary hereunder; and
(e) An opinion of counsel to such Borrowing Subsidiary, substantially
in the form of Exhibit H hereto and as to such other matters as the
Administrative Agent shall reasonably request.
SECTION 3.03 Conditions Precedent to Each Committed Borrowing. The
obligation of each Bank to make a Committed Advance on the occasion of each
Committed Borrowing (including the initial Committed Borrowing) shall be subject
to the further conditions precedent that the Effective Date shall have occurred
and on the date of such Committed Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Committed Borrowing and
the acceptance by the applicable Borrower of the proceeds of such Committed
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Committed Borrowing such statements are true):
(a) The representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct
on and as of the date of such Committed Borrowing, before and after giving
effect to such Committed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) No event has occurred and is continuing, or would result from such
Committed Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both; provided,
that with respect to each Committed Borrowing proposed to be made to a Borrowing
Subsidiary, each reference in Section 6.01(e), (f) and (i) to "Material
Subsidiary" shall, solely for purposes of this Section 3.03(b), be deemed to
include such Borrowing Subsidiary; and
(c) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to such Committed
Borrowing and the application of the proceeds thereof) of the Company and its
Subsidiaries does not exceed the maximum amount then authorized by the Company's
Board of Directors.
SECTION 3.04 Conditions Precedent to Each Uncommitted Borrowing. Each
bidding Bank's obligation to make an Uncommitted Advance as part of an
Uncommitted Borrowing (including the initial Uncommitted Borrowing) is subject
to the conditions precedent that on the date of such Uncommitted Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Uncommitted Borrowing and the acceptance by such Borrower of the
proceeds of such Uncommitted Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Uncommitted Borrowing such
statements are true):
(a) The representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct
on and as of the date of such
37
Uncommitted Borrowing, before and after giving effect to such Uncommitted
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date,
(b) No event has occurred and is continuing, or would result from such
Uncommitted Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both, and
(c) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to the application of
the proceeds of such Uncommitted Borrowing) of the Company and its Subsidiaries
does not exceed the maximum amount thereof then authorized by the Company's
Board of Directors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01 Representations and Warranties of the Company. The Company
represents and warrants to the Banks as follows:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction indicated at the
beginning of this Agreement.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Company's certificate of incorporation, as amended, or by-laws or (ii) law or
any contractual restriction binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Company of this Agreement.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the applicable
Borrower. This Agreement is, and each of the Notes when delivered hereunder will
be, a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with their respective terms, subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity.
(e) (i) The consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of December 31, 2001, and the related consolidated
statements of income, cash flow and shareholders' equity of the Company and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which have
been furnished to each Bank, fairly present the financial condition of the
Company and its Consolidated Subsidiaries as at such date and the consolidated
results of the operations of the Company and its Consolidated Subsidiaries for
the period ended on such date, all in accordance with generally accepted
accounting principles.
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(i) Since December 31, 2001, there has been no material adverse
change in the business, financial condition, operations, properties or
performance of the Company and its Subsidiaries, taken as a whole.
(f) There are no actions, suits or proceedings (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries pending
before any court or arbitrator or any governmental body, agency or official, or,
to the knowledge of any Responsible Officer of the Company, threatened, that
could reasonably be expected (i) to have a Material Adverse Effect (except as
set forth on Schedule III hereto as of the date hereof) or (ii) to materially
and adversely affect the legality, validity or enforceability of this Agreement
or any Note.
(g) Following application of the proceeds of each Advance to the
Company, not more than 25% of the value of the assets (either of the Company
only or of the Company and its Consolidated Subsidiaries) will be Margin Stock
subject to any restriction contained in any agreement or instrument between the
Company and any Bank or any affiliate of any Bank relating to Debt within the
scope of Section 6.01(e).
(h) The Company is not principally engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(i) The Advances to each Borrower, and all related obligations of such
Borrower under this Agreement, rank pari passu with all other unsecured
indebtedness for money borrowed or raised by such Borrower that is not, by its
terms, expressly subordinated to other such indebtedness of such Borrower.
(j) No Borrower is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
(k) (i) All necessary Environmental Permits have been obtained and are
in effect for the operations and properties of the Company and its Subsidiaries,
and the Company and its Subsidiaries are in compliance with all such
Environmental Permits, except to the extent that the failure to so obtain or
comply could not reasonably be expected to have a Material Adverse Effect; and
(ii) no circumstances exist that could reasonably be expected to (A) form the
basis of an Environmental Action against the Company or any of its Subsidiaries
or any of their properties that could reasonably be expected to have a Material
Adverse Effect or (B) cause any such property to be subject to any restrictions
on ownership, occupancy, use or transferability under any Environmental Law that
could reasonably be expected to have a Material Adverse Effect.
(l) None of the properties owned or leased by the Company or any of
its Subsidiaries is the subject of any investigation or cleanup, whether
voluntary or required pursuant to any Environmental Law or ordered by any
governmental authority, that could reasonably be expected to have a Material
Adverse Effect.
(m) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
39
(n) Neither the Company nor any of its ERISA Affiliates (i) has
incurred or is reasonably expected to incur any Withdrawal Liability with
respect to any Multiemployer Plan or (ii) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(o) As of the last annual actuarial valuation date, the aggregate
current liability (as defined in Section 412 of the Internal Revenue Code) under
the Plans does not exceed the aggregate fair market value of the assets of such
Plans by more than $50,000,000.
ARTICLE V
COVENANTS OF THE COMPANY
------------------------
So long as any Advance shall remain unpaid or any Bank shall have any
Commitment hereunder, unless the Majority Banks shall otherwise consent in
writing:
SECTION 5.01 Compliance with Laws, Etc. The Company will comply, and cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, except for laws, rules, regulations and
orders the violation of which, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02 Interest Coverage Ratio. The Company will, as of the end of
each fiscal quarter after the Effective Date, maintain an Interest Coverage
Ratio of not less than 2.0 to 1.
SECTION 5.03 Reporting Requirements. The Company will furnish to the Banks:
(a) within 60 days after the end of each of the first three quarters
of each fiscal year of the Company, but in no case earlier than when such report
shall be required to be filed with the Commission, a copy of the Company's Form
10-Q filed with the Commission for such quarter, or any similar quarterly report
required to be filed by the Company with the Commission; provided that if the
Company shall no longer be required to so file with the Commission, the Company
will nonetheless thereafter continue to furnish to the Banks such financial
statements and related materials as would have comprised such filings, at such
times as the Company would have otherwise delivered the same to the Commission;
(b) within 120 days after the end of each fiscal year of the Company,
but in no case earlier than when such report shall be required to be filed with
the Commission, a copy of the Company's Form 10-K filed with the Commission for
such year, or any similar annual report required to be filed by the Company with
the Commission; provided that if the Company shall no longer be required to so
file with the Commission, the Company will nonetheless thereafter continue to
furnish to the Banks such financial statements and related materials as would
have comprised such filings, at such times as the Company would have otherwise
delivered the same to the Commission;
40
(c) simultaneously with the delivery of the reports referred to in
clauses (a) and (b) above, a certificate of a designated financial officer of
the Company (i) setting forth in reasonable detail the calculations required to
establish whether the Company was in compliance with the requirements of Section
5.02 on the date of such financial statements and (ii) stating whether there
exists on the date of such certificate any Event of Default or condition or
event which with notice or lapse of time or both would become an Event of
Default and, if any Event of Default or any such condition or event then exists,
setting forth the details thereof and the action which the Company is taking
with respect thereto;
(d) promptly after the sending or filing thereof, copies of all
reports which the Company sends to any of its security holders, and copies of
all reports and registration statements (other than Form S-8 or any similar
form) which the Company or any Borrowing Subsidiary files with the Commission or
any national securities exchange;
(e) promptly following any Responsible Officer's knowledge thereof,
notice in writing of (i) the occurrence of any Event of Default or condition or
event which with notice or lapse of time or both would become an Event of
Default and, if any Event of Default or any such condition or event then exists,
setting forth the details thereof and the action which the Company is taking
with respect thereto, or (ii) the institution of, or any adverse final judgment
in, any litigation, arbitration proceeding or governmental proceeding which, in
the Company's judgment, if adversely determined, could reasonably be expected to
have a Material Adverse Effect; and
(f) such other pertinent information as any Bank may reasonably
request.
SECTION 5.04 Use of Proceeds. The Borrowers will use the proceeds of the
Advances made under this Agreement only for general corporate purposes otherwise
permitted under this Agreement, including, without limitation, mergers and
acquisitions, the purchase of stock of other Persons, the repurchase of shares
of capital stock of the Company, the repayment of indebtedness, the funding of
employee benefit plans of the Company or its Subsidiaries, the purchase of goods
and services and the making of capital expenditures and for other lawful
purposes; provided that, no Borrower shall use the proceeds of any Advances made
hereunder to acquire 20% or more of the outstanding shares of the capital stock
of any Person unless (a) at the time of such acquisition, such Person shall have
consented to such acquisition either by having entered into an agreement with
the Company or a subsidiary of the Company contemplating a merger of such Person
with or into the Company or such subsidiary or by its Board of Directors having
authorized, approved or consented to such acquisition, or (b) such Borrower
shall have obtained the prior written consent with respect thereto of (i) in the
case of any Committed Borrowing the proceeds of which shall be used to
facilitate such acquisition, the Banks and (ii) in the case of any Uncommitted
Borrowing the proceeds of which shall be used to facilitate such acquisition,
the Banks extending Uncommitted Advances in connection therewith; provided
further that if the applicable Borrower shall have specified the intended use of
proceeds of an Uncommitted Borrowing in the Notice of Uncommitted Borrowing with
respect thereto, each Bank electing to offer to make one or more Uncommitted
Advances in response thereto shall be deemed to have provided the written
consent required under this Section 5.04 for such use of the proceeds of such
Uncommitted Advances.
41
SECTION 5.05 Limitation on Liens, Etc. The Company will not create or
suffer to exist, or permit any of its Consolidated Subsidiaries to create or
suffer to exist, any Lien, upon or with respect to any of its properties (other
than Margin Stock), whether now owned or hereafter acquired, or assign, or
permit any of its Consolidated Subsidiaries to assign, any right to receive
income, in each case to secure any Debt of any Person or entity, other than:
(a) Liens arising in connection with the obligations of the Company or
any Subsidiary under industrial revenue bonds;
(b) Liens on assets of a Subsidiary of a Borrower to secure Debt of
such Subsidiary to any Borrower;
(c) Purchase money Liens claimed by sellers of goods on ordinary trade
terms provided that no financing statement has been filed to perfect such Liens,
and provided that no such Lien shall extend to assets of any character other
than the goods being acquired;
(d) Liens securing Debt existing as of December 31, 2001;
(e) Liens securing Debt on property of a corporation or firm (or
division thereof) that becomes a Subsidiary of the Company or of any of its
Subsidiaries after the date hereof in accordance with Section 5.06 and existing
at the time such corporation is merged or consolidated with the Company or any
Subsidiary, at the time such corporation or firm (or division thereof) becomes a
Subsidiary of the Company or any of its Subsidiaries, or at the time of a sale,
lease or other disposition of the properties of a corporation or a firm (or
division thereof) as an entirety or substantially as an entirety to the Company
or a Subsidiary, provided that such Liens were not created in contemplation of
such merger, consolidation, acquisition, sale, lease or disposition and do not
extend to assets other than those of the Person merged into or consolidated with
the Company or such Subsidiary or acquired by the Company or such Subsidiary;
(f) Liens on life insurance policies owned by the Company or any
Subsidiary, securing Insurance Policy Debt;
(g) Purchase money Liens constituting the interest of a lessor under a
lease that would be capitalized on the lessee's balance sheet in accordance with
GAAP, or under a sale-leaseback transaction, in each case relating to equipment,
provided that after giving effect thereto, no Event of Default under Section
5.02 shall exist;
(h) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Liens referred to in the
foregoing subsections (a) through (g); provided that, in the case of Liens
referred to in the foregoing subsections (c), (d), (e), (f) and (g), the
principal amount of Debt secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement Lien shall be limited to all or a
part of the property which is subject to the Lien so extended, renewed or
replaced (plus improvements on such property);
42
(i) Liens incurred in connection with Securitization Transactions;
provided, that such Liens do not encumber any property other than the
Receivables and Related Security relating to such Securitization Transactions;
and
(j) Additional Liens securing Debt other than as may be included in
the foregoing subsections (a) through (i), provided, that the aggregate
outstanding principal amount of such Debt shall not at any time exceed 10% of
Consolidated Tangible Net Worth at such time.
SECTION 5.06 Merger; Sale of Assets. The Company will not, and will not
permit its Material Subsidiaries to, merge or consolidate with or into any other
Person, or sell, transfer, lease or otherwise dispose of all or substantially
all of its assets (whether now owned or hereafter required), except that:
(a) the Company or a Material Subsidiary may acquire another
corporation by merger, provided that, if the Company is a party to such merger,
the Company is the surviving corporation, and provided further that after giving
effect to such merger, no Event of Default (or event which, with the giving of
notice or the passing of time or both would constitute an Event of Default)
shall exist;
(b) any Material Subsidiary may merge or consolidate with or into, or
sell or otherwise dispose of any or all of its assets to, the Company or another
Subsidiary, and any Material Subsidiary that is not a Borrowing Subsidiary may
sell all or substantially all of its assets; provided that (a) after giving
effect to such merger, consolidation, sale or other disposition, no Event of
Default (or any event which, with the giving of notice or the passing of time or
both would constitute an Event of Default) shall exist, and (b) in the case of
an asset sale by such a Material Subsidiary, the assets to be sold do not
constitute all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole; and
(c) the Company or any Material Subsidiary may transfer interests in
accounts or notes receivable on a limited recourse basis in connection with
Securitization Transactions.
SECTION 5.07 Books and Records; Inspection. The Company will, and will
cause each of its Subsidiaries to, (a) maintain complete and accurate books and
records, in which full and correct entries shall be made of all financial
transactions of the Company and each such Subsidiary in accordance with
generally accepted accounting principles, and (b) permit any Bank, the
Administrative Agent and their respective employees and agents, at such
reasonable times during normal business hours and as often as may be reasonably
requested, to inspect any of the properties of the Company or any of its
Subsidiaries and to inspect and make copies of the material books and records of
the Company and its Subsidiaries and to discuss the affairs and finances of the
Company and its Subsidiaries with their officers; provided that such Bank or the
Administrative Agent shall have delivered a written request for such inspection
to the Company prior to the date of any such inspection.
SECTION 5.08 Corporate Existence. Subject to the Company's rights under
Section 5.06, the Company will, and will cause each of its Material Subsidiaries
to, at all times maintain its corporate existence and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses.
43
SECTION 5.09 Conduct of Business. The Company shall not, and shall not
permit any Material Subsidiary to, engage in any line of business other than (A)
the businesses engaged in by the Company and its Subsidiaries on the date hereof
and (B) any business or activities substantially similar or related thereto
(which shall include, without limitation, other businesses related to the
handling and/or distribution of data used or processed in the businesses engaged
in by the Company and its Subsidiaries on the date hereof).
SECTION 5.10 Payment of Taxes. The Company will pay and discharge, and
cause each of its Material Subsidiaries to pay and discharge, before the same
shall become delinquent, all material taxes, assessments and governmental
charges or levies imposed upon it or its property; provided, however, that
neither the Company nor any of its Material Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or levy that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in accordance with GAAP, as long as no action has
been commenced to enforce any Lien securing any such tax, assessment, charge or
levy.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) A Borrower shall fail to pay when due any installment of principal
of any Advance; or
(b) A Borrower shall fail to pay any fee under this Agreement, or any
installment of interest on any Advance, within five (5) days after the due date
thereof; or
(c) Any written representation or warranty made or deemed made by a
Borrower herein or in connection with this Agreement shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) The Company shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, 5.03(a), (b) or (e), 5.04,
5.05, 5.06, 5.07, 5.08, 5.09 or 5.10, or (ii) any other term, covenant or
agreement contained in this Agreement, other than as otherwise provided in this
Section 6.01, on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been given
to the Company by the Majority Banks through the Administrative Agent; or
(e) The Company or any Material Subsidiary shall fail to pay any
principal of or premium or interest on any Debt, or any obligations in respect
of acceptances, letters of credit or other similar instruments, of the Company
or such Material Subsidiary which is outstanding in a principal amount of at
least $50,000,000 in the aggregate (but excluding Debt arising under this
Agreement), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt or other obligation; or any
other event shall occur or condition shall exist under any agreement or
44
instrument relating to any such Debt or other obligation and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or permit
the acceleration of, the maturity of such Debt or other obligation; or any Debt
or other such obligation in which the outstanding principal exceeds $50,000,000
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed, defeased or otherwise repurchased by the
Company or any Material Subsidiary (other than by a regularly-scheduled required
prepayment), or any offer to prepay, redeem, defease or purchase such Debt shall
be required to be made, prior to the stated maturity thereof; or
(f) (i) The Company or any Material Subsidiary (A) shall generally not
pay its debts as such debts become due, or (B) shall admit in writing its
inability to pay its debts generally, or (C) shall make a general assignment for
the benefit of creditors; or (ii) any proceeding shall be instituted by or
against the Company or any Material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property, and in the event of any such proceeding instituted against the
Company or any Material Subsidiary (but not instituted by it), such proceeding
shall remain undismissed or unstayed for a period of 60 days or shall result in
the entry of an order for relief, the appointment of a trustee or receiver, or
other action in such proceeding or result adverse to the Company or such
Material Subsidiary, as applicable; or (iii) the Company or any Material
Subsidiary shall take any corporate action to authorize any of the actions set
forth above in this subsection (f)(i)(B), (i)(C) or (ii); or
(g) Any Person, or a group of Persons acting in concert, shall at any
time acquire, directly or indirectly, in excess of 50% of the securities having
ordinary voting power to elect members of the board of directors of the Company;
or
(h) The Company shall incur liability in excess of $50,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Company or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) One or more final judgments or orders for the payment of money, in
an aggregate amount exceeding $50,000,000 at any one time outstanding (exclusive
of judgment amounts fully covered by insurance, to the extent the insurer has
admitted liability in respect thereof), shall be rendered against the Company or
any Material Subsidiary and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or (ii) such judgments or
orders shall not be discharged (or provision shall not have been made for such
discharge), a stay of execution thereof shall not be obtained, or such judgments
or orders shall not be paid or bonded, within 60 days from the date of entry
thereof, and the Company or such Material Subsidiary, as the case may be, shall
not, within such 60-day period, appeal therefrom and cause the execution thereof
to be stayed pending such appeal;
45
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Banks, by notice to the Company, (i)
declare the obligation of each Bank to make Advances to any Borrower to be
terminated, whereupon the same shall forthwith terminate, and (ii) declare the
Notes, all interest thereon and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Borrower; provided, however, that if an Event of Default under
Section 6.01(f) (other than subsection (i)(a) thereof) occurs with respect to
the Company, (A) the obligation of each Bank to make Advances to any Borrower
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
ARTICLE VII
GUARANTEE
SECTION 7.01 Unconditional Guarantee. For valuable consideration, receipt
whereof is hereby acknowledged, and to induce the Banks to make Advances to each
Borrowing Subsidiary, the Company unconditionally and irrevocably guarantees to
the Banks and the Administrative Agent that the principal of and interest on
each Advance and all other amounts payable by each Borrowing Subsidiary
hereunder shall be promptly paid in full when due (whether at stated maturity,
by acceleration or otherwise) in accordance with the terms hereof and thereof,
and, in the case of any extension of time of payment, in whole or in part, that
all such amounts shall be promptly paid when due (whether at stated maturity, by
acceleration or otherwise) in accordance with the terms of such extension. In
addition, the Company unconditionally agrees that upon (a) default in the
payment when due (whether at stated maturity, by acceleration or otherwise) of
any of such principal, interest or other amounts, the Company shall forthwith
pay the same, or (b) the occurrence and continuance of any event described in
Section 6.01(e), (f) or (i) with respect to any Borrowing Subsidiary (as if each
reference therein to "Material Subsidiary" were a reference to such Borrowing
Subsidiary), the Company shall forthwith pay all principal, interest and other
amounts payable hereunder by such Borrowing Subsidiary. Without limiting the
generality of the foregoing, the Company's liability shall extend to all amounts
that constitute part of the obligations of any Borrowing Subsidiary guaranteed
by the Company under this Article VII and would be owed by any such Borrowing
Subsidiary to any Bank or the Administrative Agent under this Agreement or the
Notes but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving such
Borrowing Subsidiary.
SECTION 7.02 Validity. The obligations of the Company under this Article
VII are independent of the obligations of the Borrowing Subsidiaries guaranteed
hereunder, and a separate action or actions may be brought and prosecuted
against the Company to enforce its obligations under this Article VII,
irrespective of whether any action is brought against any Borrowing Subsidiary
or whether any Borrowing Subsidiary is joined in any such action or actions. The
obligations of the Company under this Article VII shall be unconditional
irrespective of (i) the genuineness, validity, regularity or enforceability of
the obligations of the Borrowing Subsidiaries under this Agreement, any Note or
any Assumption Letter, (ii) any law,
46
regulation or order of any jurisdiction affecting any term of any obligation of
any Borrowing Subsidiary under this Agreement or the rights of any Bank or the
Administrative Agent with respect thereto, (iii) any change in the time, manner
or place of payment of, or in any other term of, all or any of the obligations
of any Borrowing Subsidiary guaranteed by the Company under this Article VII, or
any other amendment or waiver of or any consent to departure from this Agreement
or the Notes, (iv) any change, restructuring or termination of the corporate
structure or existence of any Borrowing Subsidiary or any of its Subsidiaries,
or (v) to the fullest extent permitted by applicable law, any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
SECTION 7.03 Waivers. The Company expressly waives promptness, diligence,
presentment, protest and any other notice with respect to the obligations of the
Company under this Article VII and any requirement that any right or power be
exhausted or any action be taken against any Borrowing Subsidiary and all
notices and demands whatsoever.
SECTION 7.04 Subrogation. The Company shall be subrogated to the rights of
the Banks or the Administrative Agent against any Borrowing Subsidiary hereunder
only after the Banks and the Administrative Agent shall have been paid in full
all such amounts, with interest thereon, for which such Borrowing Subsidiary
shall have become indebted hereunder.
SECTION 7.05 Acceleration. The Company agrees that, as between the Company
on the one hand, and the Banks and the Administrative Agent, on the other hand,
the obligations of each Borrowing Subsidiary guaranteed under this Article VII
may be declared to be forthwith due and payable, or may be deemed automatically
to have been accelerated, as provided in Section 6.01 hereof for purposes of
this Article VII, notwithstanding any stay, injunction or other prohibition
(whether in a bankruptcy proceeding affecting such Borrowing Subsidiary or
otherwise) preventing such declaration as against such Borrowing Subsidiary and
that, in the event of such declaration or automatic acceleration, such
obligations (whether or not due and payable by such Borrowing Subsidiary) shall
forthwith become due and payable by the Company for purposes of this Article
VII.
SECTION 7.06 Reinstatement. The Company's obligations under this Article
VII shall be reinstated if at any time any payment received by any Bank or the
Administrative Agent from any Borrowing Subsidiary hereunder is required to be
repaid or returned by such Bank or the Administrative Agent, all as though such
payment had not been made.
SECTION 7.07 Continuing Guaranty; Assignments. This guarantee of the
Company shall (a) remain in full force and effect until the later of (i) the
cash payment in full of the obligations of any Borrowing Subsidiary guaranteed
by the Company under this Article VII and (ii) the Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of, and be enforceable by, the Banks and the Administrative Agent and
their successors, transferees and assigns (provided that the applicable
transfers and assignments are made in accordance with the terms of this
Agreement).
ARTICLE VIII
47
ADMINISTRATIVE AGENT; SYNDICATION AGENT;
DOCUMENTATION AGENT; CO-AGENTS
SECTION 8.01 Authorization and Action. Each Bank appoints and authorizes
Bank One to act as the Administrative Agent hereunder, and each Bank irrevocably
authorizes the Administrative Agent (for so long as the Administrative Agent
remains in such capacity under this Agreement) to act as the contractual
representative of such Bank with only the rights and duties expressly set forth
herein. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article VIII.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Bank by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Banks with
only those duties as are expressly set forth in this Agreement. In its capacity
as the Banks' contractual representative, the Administrative Agent (i) does not
assume any fiduciary duties to any of the Banks, (ii) is a "representative" of
the Banks within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement. Each Bank agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Bank waives. The Administrative Agent shall have and may exercise such powers
under this Agreement as are specifically delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably incidental
hereto. The Administrative Agent shall have no implied duties to the Banks, or
any obligation to the Banks to take any action hereunder, except any action
specifically provided by this Agreement to be taken by the Administrative Agent.
As to any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and all holders of
the Notes; provided, however, that the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Bank prompt notice of each notice
given to it by any Borrower pursuant to the terms of this Agreement. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other instrument, document or agreement executed in
connection herewith by or through employees, agents, and attorney-in-fact and
shall not be answerable to the Banks, except as to money or securities received
by it or its authorized agents, for the default or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. Without limiting the
foregoing, the Administrative Agent may appoint any Affiliate as its agent for
all matters relating to Advances made in Alternative Currencies. Each such agent
shall be entitled to all of the rights and benefits granted to the
Administrative Agent hereunder, and each Bank shall treat any notice given by
any such agent as if it had been given directly by the Administrative Agent.
SECTION 8.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
48
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an assignment
agreement entered into by the Bank that is the payee of such Note, as assignor,
and a Purchaser, as assignee, as provided in Section 9.03; (ii) may consult with
legal counsel (including counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or to inspect the
property (including the books and records) of any Borrower; (v) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (vi) shall not have any duty
to ascertain, inquire into or verify the financial condition of the Company or
any of its Subsidiaries; (vii) shall have no duty to disclose to the Banks
information that is not required to be furnished by the Company to the
Administrative Agent at such time, but is voluntarily furnished by the Company
to the Administrative Agent (either in its capacity as Administrative Agent or
in its individual capacity); and (viii) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telegram) believed by it to be
genuine and signed or sent by the proper party or parties. The Administrative
Agent shall be entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the Banks and all matters
pertaining to the Administrative Agent's duties hereunder.
SECTION 8.03 The Administrative Agent and Affiliates. With respect to any
financial institution which shall become the Administrative Agent hereunder, and
with respect to such financial institution's Commitment and the Advances made by
it, such financial institution shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Administrative Agent; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include such financial institution in its individual
capacity, if applicable. Each such financial institution and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, any Borrower, any of their
respective Subsidiaries and any Person who may do business with or own
securities of any Borrower or any such Subsidiary, all as if such financial
institution were not the Administrative Agent and without any duty to account
therefor to the Banks.
SECTION 8.04 Bank Credit Decision; Notice of Default. Each Bank
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default, or an event which would
constitute an Event of Default but for the requirement that notice be given or
49
time elapse or both, unless the Agent has received written notice from a Bank or
the Company referring to this Agreement describing such Event of Default, or
such event which would constitute an Event of Default but for the requirement
that notice be given or time elapse or both, and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Banks.
SECTION 8.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Notes held by each of them
(or, if no Notes are outstanding at the time or if any Notes are held by Persons
that are not Banks, ratably according to the respective amounts of their
Commitments) from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Administrative Agent
under this Agreement; provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the Administrative Agent's gross negligence or willful
misconduct. Without limiting the foregoing, each Bank agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrowers. The obligation of the Banks under this Section 8.05 shall
survive payment of the Obligations and the termination of this Agreement.
SECTION 8.06 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Banks and the Company
and may be removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint another Bank as successor Administrative Agent or, if acceptable to the
Company, any other commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus of
at least $500,000,000. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of
resignation or the Majority Banks remove the retiring Administrative Agent, then
the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000 and otherwise acceptable
to the Company. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon 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 under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent.
50
SECTION 8.07 Syndication Agent; Documentation Agent; Managing Agent. The
Banks identified in this Agreement as the Syndication Agent, the Documentation
Agent or the Managing Agent shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing, such Banks
shall not have or be deemed to have a fiduciary relationship with any Bank. Each
Bank hereby makes the same acknowledgments with respect to such Banks as it
makes with respect to the Administrative Agent in Section 8.04.
ARTICLE IX
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
SECTION 9.01 Successors and Assigns. The terms and provisions of this
Agreement and the Notes shall be binding upon and inure to the benefit of the
Company and the Banks and their respective successors and assigns permitted
hereby, except that (a) neither the Company nor any Borrowing Subsidiary shall
have the right to assign its rights or obligations under this Agreement and the
Notes without the prior written consent of each Bank, (b) any assignment by any
Bank must be made in compliance with Section 9.03, and (c) any transfer by
participation must be made in compliance with Section 9.02. Any attempted
assignment or transfer by any party not made in compliance with this Section
9.01 shall be null and void, unless such attempted assignment or transfer is
treated as a participation in accordance with Section 9.02. The parties to this
Agreement acknowledge that clause (b) of this Section 9.01 relates only to
absolute assignments and this Section 9.01 does not prohibit assignments
creating security interests, including, without limitation, (x) any pledge or
assignment by any Bank of all or any portion of its rights under this Agreement
and any Note to a Federal Reserve Bank or (y) in the case of a Bank which is a
Fund, any pledge or assignment of all or any portion of its rights under this
Agreement and any Note to its trustee in support of its obligations to its
trustee; provided, that no such pledge or assignment creating a security
interest shall release the transferor Bank from its obligations hereunder unless
and until the parties thereto have complied with the provisions of Section 9.03
and no Person acquiring any interest in any pledge or assignment creating a
security interest shall be entitled to exercise any voting rights hereunder. The
Administrative Agent may treat the Person which made any Advance or which holds
any Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 9.03; provided, that the Administrative Agent may
in its discretion (but shall not be required to) follow instructions from the
Person which made any Advance or which holds any Note to direct payments
relating to such Advance or Note to another Person. Any assignee of the rights
to any Advance or any Note agrees by acceptance of such assignment to be bound
by all the terms and provisions of this Agreement and the Notes. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of the rights to any Advance
(whether or not a Note has been issued in evidence thereof), shall be conclusive
and binding on any subsequent holder or assignee of the rights to such Advance.
SECTION 9.02 Participations.
9.02.1 Permitted Participants; Effect. Any Bank may at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Loan owing to such
51
Bank, any Note held by such Bank, any Commitment of such Bank or any other
interest of such Bank under this Agreement and the Notes. In the event of any
such sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement and the Notes shall remain unchanged, such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, such Bank shall remain the owner of its Advances and the
holder of any Note issued to it in evidence thereof for all purposes under this
Agreement and the Notes, all amounts payable by the Borrowers under this
Agreement shall be determined as if such Bank had not sold such participating
interests, and the Borrowers and the Administrative Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the Notes.
9.02.2 Voting Rights. Each Bank shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of this Agreement and the Notes other than any
amendment, modification or waiver with respect to any Advance or Commitment in
which such Participant has an interest which would require consent of all of the
Banks pursuant to the terms of Section 10.01.
9.02.3 Benefit of Certain Provisions. The Company agrees that each
Participant shall be deemed to have the right of setoff provided in Section 9.05
in respect of its participating interest in amounts owing under this Agreement
and the Notes to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement and the Notes;
provided, that each Bank shall retain the right of setoff provided in Section
9.05 with respect to the amount of participating interests sold to each
Participant to the extent not applied by such Participant. The Banks agree to
share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 9.05, agrees to share with each Bank, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 2.15 as if each Participant were a Bank. The
Company further agrees that each Participant shall be entitled to the benefits
of Sections 2.02(d), 2.11, 2.12 and 2.18 to the same extent as if it were a Bank
and had acquired its interest by assignment pursuant to Section 9.03; provided,
that (a) a Participant shall not be entitled to receive any greater payment
under Section 2.02(d), 2.11, 2.12 or 2.18 than the Bank who sold the
participating interest to such Participant would have received had it retained
such interest for its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Company, and (b) any
Participant not incorporated under the laws of the United States of America or
any State thereof agrees to comply with the provisions of Section 2.18 to the
same extent as if it were a Bank.
SECTION 9.03 Assignments.
9.03.1 Permitted Assignments. Any Bank may at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under this Agreement and the Notes. Such assignment shall be
substantially in the form of Exhibit A or in such other form as may be agreed to
by the parties thereto. Each such assignment with respect to a Purchaser which
is not a Bank or an Affiliate of a Bank shall either be in an amount equal to
the entire applicable Commitment and Advances of the assigning Bank or (unless
each of the Company (unless an Event of Default has occurred and is continuing)
and the Administrative Agent otherwise consents) be in an aggregate amount not
less than the lesser of (a) $10,000,000
52
or (b) the remaining amount of the assigning Bank's Commitment. The amount of
the assignment shall be based on the Commitment or outstanding Advances (if the
Commitment has been terminated) subject to the assignment, determined as of the
date of such assignment or as of the "Trade Date," if the "Trade Date" is
specified in the assignment. Any assignment required pursuant to Section 2.05(b)
shall also be made pursuant to this Section 9.03.
9.03.2 Consents. The consent of the Company shall be required prior to
an assignment becoming effective unless the Purchaser is a Bank or an Affiliate
of a Bank; provided, that the consent of the Company shall not be required if an
Event of Default has occurred and is continuing or if the assignment is in
connection with the physical settlement of credit derivative transactions and
the Administrative Agent shall use commercially reasonable efforts to give
prompt notice to the Company of any such assignment. The consent of the
Administrative Agent shall be required prior to an assignment becoming effective
unless the Purchaser is a Bank or an Affiliate of a Bank. Any consent required
under this Section 9.03.2 shall not be unreasonably withheld or delayed.
9.03.3 Effect; Effective Date. Upon (a) delivery to the Administrative
Agent of an assignment, together with any consents required by Sections 9.03.1
and 9.03.2, and (b) payment of a $3,500 fee to the Administrative Agent for
processing such assignment (unless such fee is waived by the Administrative
Agent), such assignment shall become effective on the effective date specified
in such assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Advances under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under this Agreement and the Notes will not be
"plan assets" under ERISA. On and after the effective date of such assignment,
such Purchaser shall for all purposes be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank under this Agreement and the
Notes, to the same extent as if it were an original party thereto, and the
transferor Bank shall be released with respect to the Commitment and Advances
assigned to such Purchaser without any further consent or action by the Company,
the Banks or the Administrative Agent. In the case of an assignment covering all
of the assigning Bank's rights and obligations under this Agreement, such Bank
shall cease to be a Bank hereunder but shall continue to be entitled to the
benefits of, and subject to, those provisions of this Agreement which survive
payment of the Obligations and termination of the applicable agreement. Any
assignment or transfer by a Bank of rights or obligations under this Agreement
that does not comply with this Section 9.03.3 shall be treated for purposes of
this Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with Section 9.03.2. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 9.03.3, the transferor Bank,
the Administrative Agent and the Company shall, if the transferor Bank or the
Purchaser desires that its Advances be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to such transferor Bank and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
9.03.4 Register. The Administrative Agent, acting solely for this
purpose as an agent of the Company, shall maintain at one of its offices in
Chicago, Illinois a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and
53
addresses of the Banks, and the Commitments of, and principal amounts of the
Advances owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Company, the Administrative Agent and
the Banks may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
SECTION 9.04 Dissemination of Information. The Company authorizes each Bank
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in this Agreement and the Notes by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Bank's possession concerning the creditworthiness of the Company and its
Subsidiaries; provided, that each Transferee and prospective Transferee agrees
to be bound by Section 10.09 of this Agreement.
SECTION 9.05 Tax Treatment. If any interest in this Agreement or any Note
is transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Bank shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 2.18.
ARTICLE X
MISCELLANEOUS
-------------
SECTION 10.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor any consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, directly do any of the following: (i) waive
any of the conditions specified in Section 3.01 or 5.04, (ii) increase or extend
the Commitments of the Banks (except pursuant to Section 2.22)or subject the
Banks to any additional obligations, (iii) reduce the principal of, or the
stated rate at which interest accrues on, the Notes or reduce the stated rate at
which the Facility Fee and the Utilization Fee are calculated, (iv) postpone any
date fixed for any payment of principal of, or interest on, the Committed
Advances or any fees or other amounts payable hereunder, (v) change the
percentage of the Commitments, or of the aggregate unpaid principal amount of
the Notes, or the number of Banks which shall be required for the Banks or any
of them to take any action hereunder or (vi) amend this Section 10.01; provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Banks required above to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement or any Note.
SECTION 10.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered,
54
(i) if to the Company, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Treasurer, telecopy number (312)
326-8557;
(ii) if to any Borrowing Subsidiary, at the address specified in
the Assumption Letter pursuant to which it became a Borrowing Subsidiary,
with a copy to the Company at the address specified herein; provided that
any such notice may be given solely to the Company, at the option of the
party giving such notice;
(iii) if to any bank listed on the signature pages hereof, at its
Domestic Lending Office specified opposite its name on Schedule I hereto;
(iv) if to any other Bank, at its Domestic Lending Office
specified in the assignment agreement pursuant to which it became a Bank;
(v) if to the Administrative Agent, at the Domestic Lending
Office specified opposite its name on Schedule I hereto;
or as to the Borrowers and the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties, and
as to each such other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent. All
such notices and communications shall, when sent by overnight courier, mailed or
telecopied, be effective when delivered to such courier, deposited in the mails,
or telecopied and confirmed by return telecopy, respectively, except that
notices and communications to the Administrative Agent pursuant to Articles II,
III and VIII shall not be effective until received by the Administrative Agent.
Notices hereunder to the Company shall not be given by electronic mail.
(b) If any notice required under this Agreement is permitted to be made,
and is made, by telephone, actions taken or omitted to be taken in reliance
thereon by the Administrative Agent or by any Bank shall be binding upon the
Company and each other Borrower notwithstanding any inconsistency between the
notice provided by telephone and any subsequent writing in confirmation thereof
provided to the Administrative Agent or such Bank; provided that any such action
taken or omitted to be taken by the Administrative Agent or such Bank shall have
been in good faith and in accordance with the terms of this Agreement.
SECTION 10.03 No Waiver; Remedies. No failure on the part of any Bank or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 10.04 Costs and Expenses. (a) The Company agrees to pay on demand
all reasonable, documented out-of-pocket costs and expenses of the Arranger and
the Administrative Agent (including, without limitation, reasonable fees and
expenses of counsel), in connection with any amendments, modifications or
waivers of the provisions hereof, or in determining the rights and obligations
of the parties hereto under this Agreement and the Notes, or the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement
and the other documents to be delivered hereunder; provided that if, in the
event of
55
any enforcement undertaken by the Banks hereunder, it shall be determined that
sufficient conflicts exist such that a single law firm engaged by the
Administrative Agent or the Majority Banks is precluded by law or by standards
of conduct from representing the Banks as a group, and such conflicts would
exist with respect to any other law firm representing the Banks as a group, the
Company agrees to pay on demand all reasonable, documented out-of-pocket costs
and expenses of each Bank, if any (including, without limitation, reasonable
fees and expenses of counsel), in connection with such enforcement undertaking.
(b) The Company agrees to pay to the Administrative Agent such fees as
shall have been agreed to by the Administrative Agent and the Company in a
separate agreement regarding the provision by the Administrative Agent of
services as Administrative Agent under this Agreement.
SECTION 10.05 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the declaration that the Advances
are due and payable pursuant to the provisions of Section 6.01, each Bank is
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank to or for the credit or the account of any Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under this Agreement and the Notes held by such Bank, irrespective of
whether or not such Bank shall have made any demand under this Agreement or such
Notes and although such obligations may be unmatured. Each Bank shall promptly
notify the Company after any such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
SECTION 10.06 Binding Effect. This Agreement (other than Sections 2.01 and
2.03, which shall only become effective upon satisfaction of the conditions set
forth in Section 3.01) shall become effective when it shall have been executed
by the Company and the Administrative Agent and when the Administrative Agent
shall have been notified by each bank listed on the signature pages hereof that
it has executed this Agreement and thereafter shall be binding upon and inure to
the benefit of the Company, the Administrative Agent and each Bank and their
respective successors and assigns, except that neither the Company nor any
Borrowing Subsidiary shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Banks.
SECTION 10.07 Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of Illinois.
SECTION 10.08 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 10.09 Confidentiality. Each Bank agrees that it will use reasonable
efforts to keep confidential any information from time to time supplied to it by
the Company
56
which the Company designates in writing at the time of its delivery to the Bank
is to be treated confidentially; provided, however, that nothing herein shall
affect the disclosure of any such information to: (i) the extent required by
statute, rule, regulation or judicial process; (ii) counsel for any Bank or to
their respective accountants; (iii) bank examiners and auditors; (iv) any
Affiliate of such Bank; (v) any other Bank, or, subject to Section 9.04, any
Transferee or prospective Transferee; or (vi) any other Person in connection
with any litigation to which any one or more of the Banks is a party; provided
further, however, that each Bank agrees that it will use reasonable efforts to
promptly notify the Company of any request for information under this clause
(vi) or with respect to any request for information not enumerated in this
Section 10.09, if not otherwise prohibited from doing so.
SECTION 10.10 Non-Reliance by the Banks. Each Bank by its signature to this
Agreement represents and warrants that (i) it has not relied in the extension of
the credit contemplated by this Agreement, nor will it rely in the maintenance
thereof, upon any assets of the Company or its Subsidiaries consisting of Margin
Stock as collateral and (ii) after reviewing the financial statements of the
Company and its Consolidated Subsidiaries referred to in Section 4.01(e), such
Bank has concluded therefrom that the consolidated cash flow of the Company and
its Consolidated Subsidiaries is sufficient to support the credit extended to
the Company pursuant to this Agreement.
SECTION 10.11 No Indirect Security. Notwithstanding any Section or
provision of this Agreement to the contrary, nothing in this Agreement shall
restrict or limit the right or ability of the Company or any of its Subsidiaries
to pledge, mortgage, sell, assign, or otherwise encumber or dispose of any
Margin Stock.
SECTION 10.12 Indemnification. The Company agrees to indemnify and hold
harmless the Administrative Agent, each Bank, and their respective officers,
directors, employees and agents (any one of the foregoing being an "Indemnified
Party" and any two or more of the foregoing being "Indemnified Parties") from
and against, and pay the Indemnified Parties the amount of, any and all claims,
damages, liabilities, and reasonable, documented out-of-pocket costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against an Indemnified
Party relating in whole or in part to this Agreement, the Notes, any documents
delivered in connection herewith and the transactions contemplated hereby, and
in connection with or arising out of or by reason of, or in connection with the
preparation of a defense of, any investigation, litigation or proceeding brought
by a Person other than the Indemnified Parties or the Company and its
Subsidiaries, arising out of, related to or in connection with (i) this
Agreement, the Notes, any of the transactions contemplated herein or the use or
proposed use of the proceeds of any Advances, (ii) any acquisition or proposed
acquisition by the Company or any of its Subsidiaries of all or any portion of
the stock or all or substantially all of the assets of any Person, or (iii) the
actual or alleged presence of Hazardous Materials on any property of the Company
or any of its Subsidiaries or any Environmental Action relating to any of them,
in each case whether or not such investigation, litigation or proceeding is
brought by the Company, any other Borrower, their respective shareholders or
creditors, an Indemnified Party or any other Person, and whether or not an
Indemnified Party is otherwise a party thereto, provided, however, that this
indemnification shall not apply to any claim, damage, liability, cost or expense
that is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from an
57
Indemnified Party's gross negligence or willful misconduct. The covenants of the
Company contained in this Section 10.12 and in Sections 10.04, 2.11, 2.12 and
2.19 shall survive the repayment of all amounts due and payable under this
Agreement and the termination of this Agreement.
SECTION 10.13 Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 10.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED
TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE
COMPANY, ANY BORROWING SUBSIDIARY, THE ADMINISTRATIVE AGENT OR ANY BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. EACH OF THE
PARTIES HERETO AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY BENCH TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
SECTION 10.15 Jurisdiction, Etc. (a) Each of the parties hereto irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Illinois state court or federal court of the United States
of America sitting in Chicago, Illinois, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such Illinois state court 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 any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any
Illinois state or federal court. Each of the parties hereto
58
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 10.16 Nonliability of Banks. The relationship between the Borrowers
on the one hand and the Banks and the Administrative Agent on the other hand
shall be solely that of borrower and lender. Neither the Administrative Agent,
the Arranger nor any Bank shall have any fiduciary responsibilities to the
Borrower. Neither the Administrative Agent, the Arranger nor any Bank undertakes
any responsibility to the Borrowers to review or inform the Borrowers of any
matter in connection with any phase of the Borrowers' business or operations.
Neither the Administrative Agent, the Arranger nor any Bank shall have any
liability with respect to, and the Borrowers waive, release and agree not to ▇▇▇
for, any special, indirect or consequential damages suffered by the Borrowers in
connection with, arising out of, or in any way related to this Agreement or the
transactions contemplated thereby.
SECTION 10.17 Termination of Existing Agreement. The Company and the Banks
hereto constituting the Majority Banks under the Five-Year Credit Agreement (the
"Existing Agreement") dated December 11, 1998 among the Company, the banks named
therein and Bank One, NA, as agent, agree that the Existing Agreement is hereby
terminated and shall be of no further force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
By:
-------------------------------------
Title:
----------------------------------
BANK ONE, NA, as Administrative Agent
and as a Bank
By:
-------------------------------------
Title:
----------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent and a Bank
By:
-------------------------------------
Title:
----------------------------------
THE NORTHERN TRUST COMPANY,
as Documentation Agent and a Bank
By:
-------------------------------------
Title:
----------------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK,
as Managing Agent and a Bank
By:
-------------------------------------
Title:
----------------------------------
ING BANK N.V.,
as a Bank
By:
-------------------------------------
Title:
----------------------------------
THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Bank
By:
-------------------------------------
Title:
----------------------------------
BARCLAYS BANK PLC, as a Bank
By:
-------------------------------------
Title:
----------------------------------
EXPORT DEVELOPMENT CANADA, as a Bank
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as a Bank
By:
-------------------------------------
Title:
----------------------------------
PNC BANK, as a Bank
By:
-------------------------------------
Title:
----------------------------------
BANK OF IRELAND, as a Bank
By:
-------------------------------------
Title:
----------------------------------
SCHEDULE I
Eurocurrency
Domestic Lending
Name of Bank Commitment Lending Office Office
------------ ---------- -------------- ------------
Bank One, NA $32,125,000 1 Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Bank, National $32,125,000 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. same
Association ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX. (▇▇▇) ▇▇▇-▇▇▇▇
The Northern Trust Company $25,000,000 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank $16,000,000 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ same
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
ING Bank N.V. $11,500,000 ▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
The Bank of Tokyo - $11,500,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ same
Mitsubishi, Ltd., Chicago ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Eurocurrency
Domestic Lending
Name of Bank Commitment Lending Office Office
------------ ---------- -------------- ------------
Barclays Bank PLC $11,500,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Export Development Canada $11,500,000 ▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇/2558
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank $8,750,000 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same
11th Floor
New York, NY 10020
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
PNC Bank, N.A. $7,500,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Ireland $7,500,000 FL4 La Touche House, I.F.S.C. same
Custom ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇-▇▇▇-▇▇▇▇
SCHEDULE II
PRICING SCHEDULE
================================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------
Eurocurrency Rate 0.22% 0.26% 0.30% 0.375% 0.6%
================================================================================
================================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
FACILITY FEE STATUS STATUS STATUS STATUS STATUS
RATE
================================================================================
Applicable Facility Fee 0.08% 0.09% 0.10% 0.125% 0.15%
================================================================================
Applicable Utilization
Fee Rate 0.05% 0.05% 0.05% 0.125% 0.125%
================================================================================
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's ▇▇▇▇▇'▇
Rating is A1 or better or the Company's S&P Rating is A+ or better.
"Level II Status" exists at any date if, on such date, (a) the Company has
not qualified for Level I Status and (b) the Company's ▇▇▇▇▇'▇ Rating is A2 or
better or the Company's S&P Rating is A or better.
"Level III Status" exists at any date if, on such date, (a) the Company has
not qualified for Level I Status or Level II Status and (b) the Company's
▇▇▇▇▇'▇ Rating is A3 or better or the Company's S&P Rating is A- or better.
"Level IV Status" exists at any date if, on such date, (a) the Company has
not qualified for Level I Status, Level II Status or Level III Status and (b)
the Company's ▇▇▇▇▇'▇ Rating is Baa1 or better or the Company's S&P Rating is
BBB+ or better.
"Level V Status" exists at any date if, on such date, the Company has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the Public Debt Rating issued by
▇▇▇▇▇'▇ and then in effect with respect to the Company's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the Public Debt Rating issued by S&P and
then in effect with respect to the Company's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
The Applicable Margin, Applicable Facility Fee Rate and Applicable
Utilization Fee Rate shall be determined in accordance with the foregoing table
based on the Company's Status as determined from its then-current ▇▇▇▇▇'▇ and
S&P Ratings. The credit rating in effect on any date for the purposes of this
Schedule is that in effect at the close of business on such date. If at any time
the Company has no ▇▇▇▇▇'▇ Rating or no S&P Rating, Level V Status shall exist.
SCHEDULE III
LITIGATION
▇▇▇▇▇, et al. v. ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Co.
------------------------------------------
On November 25, 1996, a class action was brought against the Company in federal
district court in Chicago, Illinois, on behalf of current and former
African-American employees, alleging that the Company racially discriminated
against them in violation of the Civil Rights Act of 1871, as amended, and the
U.S. Constitution. The complaint seeks declaratory and injunctive relief, and
asks for actual, compensatory, consequential and punitive damages in an amount
not less than $500 million.
▇▇▇▇▇, et al. v. ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Co.
------------------------------------------
On June 30, 1998, a class action was filed against the Company in federal
district court in Chicago, Illinois on behalf of current and former
African-American employees, alleging that the Company racially discriminated
against them in violation of Title VII of the Civil Rights Act of 1964. While
making many of the same general discrimination claims contained in the ▇▇▇▇▇
case above, the ▇▇▇▇▇ plaintiffs are also claiming retaliation by the Company
for the filing of discrimination charges or otherwise complaining of race
discrimination. The complaint seeks the same relief and damages as sought in the
▇▇▇▇▇ case.
Gerlib, et al. v. ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Co.
-------------------------------------------
On December 18, 1995, a class action was filed against the Company in federal
district court in Chicago, Illinois alleging that older workers were
discriminated against in selection for termination upon the closing of the
Chicago catalog operations. The suit also alleged that the Company violated the
Employee Retirement Income Security Act (ERISA) in determining benefits payable
to retiring or terminated employees. The age claim has been decided in favor of
the Company but an appeal is expected. The plaintiffs have made no claim for a
specific amount of damages in connection with the age claim. The ERISA claims in
Gerlib and the Jefferson case described below are related and the court has
ruled in the Company's favor on certain claims and in the plaintiffs favor on
other claims. The ruling is subject to appeal and the Company's approximate
liability for these claims is $14 million.
Jefferson, et al. v. ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Co.
----------------------------------------------
On December 28, 2000, a purported class action was brought against the Company
and certain of its benefit plans in federal district court in Chicago, Illinois
on behalf of certain former employees of the Chicago catalog operations. The
suit alleges that enhanced pension benefits were not paid to plaintiffs and that
plaintiffs are being required to contribute to the costs of retiree medical
coverage, both in violation of plan documents and ERISA. The complaint seeks
recalculation of pension benefits due plaintiffs since their retirement dates,
reimbursement of any amounts paid by plaintiffs for medical coverage, interest
on the foregoing amounts, as well as a declaration as to the benefits due
plaintiffs in the future. The retiree medical claim has been
decided in favor of the Company but is subject to appeal. Had the Company lost
in the original suit involving the retiree medical claim, the award would have
been approximately $20 million.
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Terms and Conditions set forth in Annex 1 attached hereto (the
"Standard Terms and Conditions") are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below, the interest in and to all of the Assignor's
rights and obligations in its capacity as a Bank under the Credit Agreement and
any other documents or instruments delivered pursuant thereto that represents
the amount and percentage interest identified below of all of the Assignor's
outstanding rights and obligations under the respective facilities identified
below (including without limitation any letters of credit, guaranties and
swingline loans included in such facilities and, to the extent permitted to be
assigned under applicable law, all claims (including without limitation contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity), suits, causes of action and any other right of the
Assignor against any Person whether known or unknown arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor:
-------------------------------------------------
2. Assignee:
-------------------------------------------------
[and is an Affiliate/of [identify Bank]/1/
3. Borrower(s): ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
4. Agent: Bank One, NA, as the administrative agent under the Credit
Agreement.
-------------------------------
/1/Select as applicable.
Exhibit A - Page 1
5. Credit Agreement: The Five Year Credit Agreement dated as of October 10,
2002 among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, the Banks
party thereto, Bank One, NA as Administrative Agent,
and the other agents party thereto.
6. Assigned Interest:
--------------------------------------------------------------------------------
Facility Assigned Aggregate Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
for all Banks Assigned* Commitment/Loans/2/
----------------------------------------------------------------------- --------
____________/3/ $ $ _______%
--------------------------------------------------------------------------------
____________ $ $ _______%
--------------------------------------------------------------------------------
____________ $ $ _______%
--------------------------------------------------------------------------------
7. Trade Date: /4/
------------------------------------
Effective Date: ____________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE
AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
-------------------------------
/2/Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Banks thereunder.
/3/Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g., "Revolving
Credit Commitment," "Term Loan Commitment,", etc.)
/4/Insert if satisfaction of minimum amounts is to be determined as of the Trade
Date.
Exhibit A - Page 2
[Consented to and]/5/ Accepted:
BANK ONE, NA, as Administrative Agent
By:
---------------------------------
Title:
[Consented to:]/6/
▇.▇. ▇▇▇▇▇▇▇▇▇ SONS & COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
-------------------------------
/5/To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
/6/To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
Exhibit A - Page 3
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, perfection, priority, collectibility,
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document, (iv) the performance or
observance by the Borrowers, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document, (v)
inspecting any of the property, books or records of the Borrowers, or any
guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to
be taken in connection with the Loans or the Loan Documents.
1.2. Assignee. The Assignee (a) (i) represents and warrants that it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (ii) agrees
that from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Bank thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Bank thereunder, (iii) agrees that its
payment instructions and notice instructions are as set forth in Schedule 1 to
this Assignment and Assumption, (iv) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets" under
ERISA, (v) agrees to indemnify and hold the Assignor harmless against all
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with or arising in
any manner from the Assignee's non-performance of the obligations assumed under
this Assignment and Assumption, (vi) represents and warrants that it has
received a copy of the Credit Agreement, together with copies of financial
statements and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Bank, and (vii) represents and warrants that
attached as Schedule 1 to this Assignment and Assumption is any documentation
required to be delivered by the Assignee with respect to its tax status pursuant
to the terms of the Credit Agreement, duly completed and executed by the
Assignee and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Bank, and based on such
documents and information as it shall deem
Exhibit A - Page 4
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Bank.
2. Payments. The Assignee shall pay the Assignor, on the Effective Date,
the amount agreed to by the Assignor and the Assignee. From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Illinois.
Exhibit A - Page 5
ADMINISTRATIVE QUESTIONNAIRE
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
(For Forms for Primary Syndication call ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at 312-732-8844)
(For Forms after Primary Syndication call ▇▇▇ ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇)
Exhibit A - Page 6
US AND NON-US TAX INFORMATION REPORTING REQUIREMENTS
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
(For Forms for Primary Syndication call ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at 312-732-8844)
(For Forms after Primary Syndication call ▇▇▇ ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇)
Exhibit A - Page 7
EXHIBIT B
[FORM OF ASSUMPTION LETTER]
---------------------, ----
To the Banks parties to the
Five Year Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of October 10,
2002 among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, the Banks named therein and Bank One,
NA, as Administrative Agent for such Banks (as amended and in effect from time
to time, the "Five Year Credit Agreement"). Terms defined in the Five Year
Credit Agreement and capitalized herein are used herein as defined therein.
The undersigned, ___________ (the "Subsidiary"), a _________________
corporation, proposes to become a "Borrowing Subsidiary" under the Five Year
Credit Agreement, and accordingly agrees that from the date hereof it shall
become a "Borrowing Subsidiary" under the Five Year Credit Agreement and agrees
that from the date hereof and until the payment in full of the principal of and
interest on all Advances made to it under the Five Year Credit Agreement and
performance of all of its other obligations thereunder, and termination
hereunder of its status as a "Borrowing Subsidiary" as provided below, it shall
perform, comply with and be bound by each of the provisions of the Five Year
Credit Agreement which are stated to apply to the "Company", a "Borrowing
Subsidiary" or a "Borrower". Without limiting the generality of the foregoing,
that Subsidiary represents and warrants that: (i) each of the representations
and warranties set forth in Sections 4(a), (b), (c) and (d) of the Five Year
Credit Agreement is hereby made by such Subsidiary on and as of the date hereof
as if made on and as of the date hereof and as if such Subsidiary is the
"Company", this Assumption Letter is the "Agreement" referenced therein and each
Note issued by such Borrowing Subsidiary is the "Note" referenced therein, and
(ii) it has heretofore received a true and correct copy of the Five Year Credit
Agreement (including any modifications thereof or supplements or waivers
thereto) as in effect on the date hereof.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Five Year Credit Agreement shall have been paid in full and
all other obligations of the Subsidiary shall have been fully performed, the
Subsidiary may by not less than five Business Days' prior notice to the Banks
terminate its status as a "Borrowing Subsidiary."
The Subsidiary irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Illinois state court or
federal court of the United States of America sitting in Chicago, Illinois, and
any appellate court from any thereof, in any action or
Exhibit B - Page 1
proceeding arising out of or relating to this Assumption Letter, the Five Year
Credit Agreement or the Notes, or for recognition or enforcement of any
judgment, and the Subsidiary irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such Illinois state court or, to the extent permitted by law, in such
federal court. The Subsidiary 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
Assumption Letter shall affect any right that any Bank or the Administrative
Agent may otherwise have to bring any action or proceeding relating to this
Assumption Letter, the Five Year Credit Agreement or the Notes in the courts of
any jurisdiction.
The Subsidiary irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Assumption Letter, the Five Year Credit Agreement or
the Notes in any Illinois state or federal court. The Subsidiary irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
This Assumption Letter shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
Exhibit B - Page 2
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By:
-------------------------------------
Title:
----------------------------------
Address for Notices under the Five Year
Credit Agreement:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
Consented to:
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
By:
----------------------------------
Title:
-------------------------------
Exhibit B - Page 3
EXHIBIT C-1
FORM OF COMMITTED NOTE
____________, _____
FOR VALUE RECEIVED, the undersigned, [▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
________________________ (the "Bank") for the account of its Applicable Lending
Office on the Termination Date (each as defined in the Five Year Credit
Agreement referred to below) the aggregate principal amount of the Committed
Advances made by the Bank to the Company pursuant to the Five Year Credit
Agreement dated as of October 10, 2002 among [the Company] [▇.▇. ▇▇▇▇▇▇▇▇▇ &
Sons Company], the Bank and certain other banks parties thereto, and Bank One,
NA, as Administrative Agent for the Bank and such other banks (as amended or
modified from time to time, the "Five Year Credit Agreement"); the terms defined
therein being used herein as therein defined) outstanding on the Termination
Date.
The Company promises to pay interest on the unpaid principal amount of each
Committed Advance made to it from the date of such Committed Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Five Year Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank One, NA, as Administrative Agent, at the address
specified pursuant to Article II of the Five Year Credit Agreement, in same day
funds. Each Committed Advance owing to the Bank by the Company pursuant to the
Five Year Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Bank and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Committed Notes referred to in, and is
entitled to the benefits of, the Five Year Credit Agreement. The Five Year
Credit Agreement, among other things, (i) provides for the making of Committed
Advances by the Bank to the Company from time to time, the indebtedness of the
Company resulting from each such Committed Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
Exhibit C-1 - Page 1
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY]
[NAME OF APPLICABLE BORROWING SUBSIDIARY]
By: _____________________________________
Title: __________________________________
Exhibit C-1 - Page 2
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------------------------------------------------------------
Date Amount of Amount of Unpaid Notation
Advance Principal Paid Principal Made By
or Prepaid Balance
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Exhibit C-1 - Page 3
EXHIBIT C-2
FORM OF UNCOMMITTED NOTE
U.S. $_______________ ____________, _____
FOR VALUE RECEIVED, the undersigned, [▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
________________________ (the "Bank") for the account of its Applicable Lending
Office (as defined in the Five Year Credit Agreement dated as of October 10,
2002 among [the Company] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company], the Bank and certain
other banks parties thereto, and Bank One, NA, as Administrative Agent for the
Bank and such other banks (as amended or modified from time to time, the "Five
Year Credit Agreement"; the terms defined therein being used herein as therein
defined) on _______________, 19__, the principal amount of U.S.$______________.
The Company promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis of a year
of ____ days for the actual number of days elapsed).
Interest Payment Date(s):
Both principal and interest are payable in lawful money of the United
States of America to Bank One, NA, for the account of the Bank, at the address
specified pursuant to Article II of the Five Year Credit Agreement, in same day
funds.
This Promissory Note is one of the Uncommitted Notes referred to in, and is
entitled to the benefits of, the Five Year Credit Agreement. The Five Year
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereupon upon the happening of certain stated events.
The Company waives presentment, demand, protest and notice of any kind. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
Exhibit C-2 - Page 1
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY]
[NAME OF APPLICABLE BORROWING SUBSIDIARY]
By: _____________________________________
Title: __________________________________
Exhibit C-2 - Page 2
EXHIBIT D-1
NOTICE OF COMMITTED BORROWING
Bank One, NA, as Administrative Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
____________, _____
Ladies and Gentlemen:
The undersigned, ________________, refers to the Five Year Credit Agreement
dated as of October 10, 2002 (as amended, modified or supplemented from time to
time, the "Five Year Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned,] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons
Company (the "Company")], certain Banks parties thereto and Bank One, NA, as
Administrative Agent for such Banks, and notifies you, pursuant to Section 2.02
of the Five Year Credit Agreement, that the undersigned requests a Committed
Borrowing under the Five Year Credit Agreement, and in that connection sets
forth below the information relating to such Committed Borrowing (the "Proposed
Committed Borrowing") as required by Section 2.02(a) of the Five Year Credit
Agreement:
(i) The Business Day of the Proposed Committed Borrowing is ____________,
_____.
(ii) The Type of Committed Advances comprising the Proposed Committed
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The currency for the Proposed Committed Borrowing is [Dollars] [type
of Alternative Currency].
(iv) The aggregate amount of the Proposed Committed Borrowing is
$__________.
(v) The Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Committed Borrowing is ______ month[s].
The undersigned certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Committed Borrowing:
(a) the representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 of the Five
Year Credit Agreement are correct, before and after giving effect to the
Proposed Committed Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date;
Exhibit D-1 - Page 1
(b) no event has occurred and is continuing, or would result from the
Proposed Committed Borrowing or from the application of the proceeds therefrom,
that constitutes an Event of Default or that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both; and
(c) the aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to the Proposed
Committed Borrowing and the application of the proceeds thereof) of [the
undersigned] [the Company] and its Subsidiaries does not exceed the maximum
amount thereof presently authorized by [the undersigned's] [the Company's] Board
of Directors.
Very truly yours,
NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
Exhibit ▇-▇ - ▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇-▇
NOTICE OF UNCOMMITTED BORROWING
Bank One, NA, as Administrative Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
____________, _____
Attention: ____________________
Ladies and Gentlemen:
The undersigned, _____________, refers to the Five Year Credit Agreement,
dated as of October 10, 2002 ( as amended, modified or supplemented from time to
time, the "Five Year Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned] [▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons
Company (the "Company")], certain Banks parties thereto and Bank One, NA, as
Administrative Agent for such Banks, and notifies you pursuant to Section 2.03
of the Five Year Credit Agreement that the undersigned requests an Uncommitted
Borrowing under the Five Year Credit Agreement, and in that connection sets
forth the terms on which such Uncommitted Borrowing (the "Proposed Uncommitted
Borrowing") is requested to be made:
(A) Date: ________________________________
(B) Amount: $_______________________________
(C) Type of Quote Requested/1/: Uncommitted
Borrowing Margin _______________
Fixed Rate _____________________
(D) Maturity Date: ________________________________
Prepayment terms: May [not] be prepaid,
[with] [without] penalty
Prepayment penalty:/2/ ________________________________
(E) Interest Payment Date(s): ________________________________
(F) Borrower: ________________________________
(G) Other terms: ________________________________
_________________________
/1/Select one.
/2/Include if applicable.
Exhibit D-2 - Page 1
The undersigned certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Uncommitted Borrowing:
(a) the representations and warranties contained in subsections (a), (b),
(c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct,
before and after giving effect to the Proposed Uncommitted Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Uncommitted Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both;
(c) the aggregate principal amount (or, in the case of securities issued at
a discount from the principal amount at maturity, the accreted amount) of
indebtedness for borrowed money (after giving effect to the Proposed Uncommitted
Borrowing and to the application of proceeds therefrom) of [the undersigned]
[the Company] and its Subsidiaries does not exceed the maximum amount thereof
presently authorized by the Board of Directors of [the undersigned] [the
Company];
The undersigned confirms that the Proposed Uncommitted Borrowing is to be
made available to it in accordance with Section 2.03(a)(iv) of the Five Year
Credit Agreement.
[NAME OF BORROWER]
By:____________________________________
Title:_________________________________
Exhibit D-2 - Page 2
EXHIBIT E
FORM OF NOTICE OF CONVERSION OR CONTINUATION
TO: Bank One, NA, as Administrative Agent (the "Administrative Agent") under
that certain Five Year Credit Agreement dated as of October 10, 2002 (the
"Five Year Credit Agreement") by and among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
(the "Company"), the Administrative Agent and the Banks parties thereto.
Pursuant to the terms and conditions of the Five Year Credit Agreement,
this Notice of Conversion or Continuation ("Notice") represents the election of
the Company to [insert one of the following]:
/1/convert $__________ in aggregate principal amount of Base Rate Advances
to Eurocurrency Rate Advances on __________, _____. The initial Interest Period
for such Eurocurrency Rate Advances is requested to be a __________ (_____)
month period. [and]/2/
/3/convert $__________ in aggregate principal amount of Eurocurrency Rate
Advances with a current Interest Period ending _____________ to Base Rate
Advances on __________, _____.
/4/continue as Eurocurrency Rate Advances $__________ in aggregate
principal amount of presently outstanding Eurocurrency Rate Advances with a
current Interest Period ending __________, for a _____ month period commencing
on __________, _____.
Unless otherwise defined herein, terms defined in the Five Year Credit
Agreement shall have the same meanings in this Notice.
Dated: ____________, _____
[NAME OF BORROWER]
By:_____________________________________
Title:__________________________________
___________________________________
/1/Use if converting Basic Rate Advances to Eurocurrency Rate Advances.
/2/Use if converting only a portion of Eurocurrency Rate Advances and continuing
the balance as Eurocurrency Rate Advances.
/3/Use if converting Eurocurrency Rate Advances to Base Rate Advances.
/4/Use if continuing Eurocurrency Advances.
Exhibit E - Page 1
EXHIBIT F
COMMITMENT INCREASE CONSENT
This Commitment Increase Consent (this "Assumption Agreement") among ▇.▇.
▇▇▇▇▇▇▇▇▇ & Sons Company (the "Borrower"), Bank One, NA, as Administrative Agent
and __________ (the "Assuming Bank") is dated as of ______, ______. The parties
hereto agree as follows:
1. PRELIMINARY STATEMENT. The Borrower, the Agent and certain Banks are
party to that certain Five Year Credit Agreement dated as of October 10, 2002
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSUMPTION. Pursuant to Section 2.22 of the Credit Agreement, the
Borrower has requested an increase in the aggregate Commitments and the Assuming
Bank has agreed, pursuant to such request, to assume the rights and obligations
of a Bank party to the Credit Agreement with a Commitment of $__________.
Immediately upon giving effect to the execution and delivery of this Assumption
Agreement, the Assuming Bank will be a Bank under the Credit Agreement with a
Commitment in such amount, together with all the rights and obligations
appurtenant thereto, including without limitation an obligation to make
Committed Advances to the Borrower in an aggregate amount at any one time
outstanding not exceeding the amount of its Commitment.
3. CONDITIONS PRECEDENT. This Assumption Agreement shall become effective
as of the Effective Date (defined below) when the Agent has received:
(i) counterparts of this Assumption Agreement duly executed and
delivered by each of the Borrower, the Agent and the Assuming Bank,
(ii) a Committed Note in the amount of $________ duly executed by the
Borrower payable to the order of the Assuming Bank, and
(iii) a certificate of an officer of the Borrower confirming that the
amount of the aggregate Commitments, after giving effect to the assumption, has
been authorized by the Borrower's Board of Directors.
4. EFFECTIVE DATE. The effective date of this Assumption Agreement (the
"Effective Date") shall be ________, _______ or such other date as is specified
by the Agent to the Assuming Bank.
5. PAYMENT OBLIGATIONS. In consideration for the assumption of its rights
and obligations hereunder, the Assuming Bank shall pay the Borrower and/or the
other Banks under the Credit Agreement, on the Effective Date, the amounts
specified by the Agent and agreed to by such parties. On and after the Effective
Date, the Assuming Bank shall be entitled
Exhibit F - Page 1
to receive from the Agent all payments of principal, interest and fees and other
amounts with respect to the interest assumed hereby. The Assuming Bank will
promptly remit to the Agent for further distribution any interest on Committed
Advances and fees received from the Agent which relate to the portion (if any)
of the Commitment, Committed Advances or other obligations assumed by the
Assuming Bank hereunder for periods prior to the Effective Date and not
previously paid by the Assuming Bank to the Agent.
6. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSUMING BANK. The Assuming Bank
(i) confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assuming Bank and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment Increase Consent, (ii)
agrees that it will, independently and without reliance upon the Agent or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Commitment Increase Consent by the
Assuming Bank is duly authorized, (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank, (vi) agrees that its
payment instructions and notice instructions are as set forth in the attachment
hereto, (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Credit Agreement and the Notes will not be "plan assets" under
ERISA, (viii) agrees to indemnify and hold the Agent and the Borrower harmless
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Agent or the
Borrower in connection with or arising in any manner from the Assuming Bank's
non-performance of the obligations assumed under this Commitment Increase
Consent, and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assuming Bank is
entitled to receive payments under the Credit Agreement and the Notes without
deduction or withholding of any United States federal income taxes.
7. GOVERNING LAW. This Commitment Increase Consent shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
8. NOTICES. Notices shall be given under this Commitment Increase Consent
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment hereto.
9. COUNTERPARTS; DELIVERY BY FACSIMILE. This Commitment Increase Consent
may be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Commitment Increase Consent shall be deemed to constitute
due and sufficient delivery of such counterpart and such facsimile shall be
deemed to be an original counterpart of this Commitment Increase Consent.
Exhibit F - Page 2
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Commitment Increase Consent as of the date first above
written.
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
By:_____________________________________
Title:__________________________________
BANK ONE, NA, as Administrative Agent
By:_____________________________________
Title:__________________________________
Commitment: $__________ _______________________________________,
as Assuming Bank
By:_____________________________________
Title:__________________________________
Exhibit F - Page 3
Attachment to COMMITMENT INCREASE CONSENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assuming Bank's Administrative Information Sheet, which must
include notice addresses for the Assuming Bank
(Sample form shown below)
ASSUMING BANK INFORMATION
Contact:
--------
Name: Telephone No.:
------------------------------ --------------------------
Fax No.:
---------------------------
Key Operations Contacts:
------------------------
Booking Installation: Booking Installation:
-------------- -------------------
Name: Name:
------------------------------ -----------------------------------
Telephone No.: Telephone No.:
--------------------- --------------------------
Fax No.: Fax No.:
--------------------------- --------------------------------
Telex No.: Telex No.:
------------------------- ------------------------------
Answerback: Answerback:
------------------------ -----------------------------
Payment Information:
--------------------
Name & ABA # of Destination Bank:
----------------------------------------------
--------------------------------------------------------------------------------
Account Name & Number for Wire Transfer:
---------------------------------------
---------------------------------------
Other Instructions:
------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices for Assuming Bank:
-------------------------------------- ---------------------------------------
---------------------------------------
---------------------------------------
Exhibit F - Page 4
BANK ONE INFORMATION
Assuming Bank will be called promptly upon receipt of the signed agreement.
Initial Funding Contract: Subsequent Operations Contact:
------------------------- ------------------------------
Name: Name:
------------------------------ -----------------------------------
Telephone No.: (312) Telephone No.: (312)
--------------------- --------------------------
Fax No.: (312) Fax No.: (312)
--------------------------- --------------------------------
Initial Funding Standards:
--------------------------
Libor - Fund 2 days after rates are set.
Bank One Wire Instructions: Bank One, NA, ABA # ▇▇▇▇▇▇▇▇▇
--------------------------- BNF = 7521 [_] 7653/DES, Ref:
------
Address for Notices for Bank One: 1 Bank ▇▇▇ ▇▇▇▇▇
--------------------------------- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Agency Compliance Division,
Suite 0353
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ or
(▇▇▇) ▇▇▇-▇▇▇▇
Exhibit F - Page 5
EXHIBIT G
Opinion of Counsel to the Company
October 10, 2002
To each of the Banks parties to
the "Five Year Credit Agreement" (as defined below),
and to Bank One, NA, as Administrative Agent
Re: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
Ladies and Gentlemen:
We have acted as counsel to ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware
corporation (the "Company"), in connection with the Five Year Credit Agreement
of even date herewith (the "Five Year Credit Agreement") among the Company, the
financial institutions parties thereto (the "Banks") and Bank One, NA, as
Administrative Agent, and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.01(a)(v) of the Five Year Credit Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Five Year Credit
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Five Year Credit
Agreement and the promissory notes delivered on the date hereof to the Banks
signatory to the Five Year Credit Agreement (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company, and
(iii) other documents and records, and we have made such inquiries of officers
and representatives of the Company, as we have deemed relevant or necessary as
the basis for such opinions. We have relied as to factual matters upon, and
assumed the accuracy of, such certificates, the representations and warranties
of the Company made in the Five Year Credit Agreement, and other statements,
documents and records supplied to us by the Company, and we have assumed the
genuineness of all signatures (other than signatures of officers of the Company)
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Five Year Credit Agreement, other than the
Company, are duly organized, validly existing, and in good standing under the
laws of their respective
Exhibit G - Page 1
jurisdictions of organization and have the requisite corporate power to enter
into the Five Year Credit Agreement; and
(ii) the execution and delivery of the Five Year Credit Agreement have been
duly authorized by all necessary corporate action and proceedings on the part of
all parties thereto other than the Company; the Five Year Credit Agreement has
been duly executed and delivered by all parties thereto and constitutes the
valid and binding obligation of all parties thereto other than the Company,
enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Company has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware. The Company has the requisite
corporate power and authority to conduct its business as currently conducted.
2. The Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under the Five Year Credit Agreement and the
Notes. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper corporate
action of the Company,
(b) do not violate any provision of the certificate of incorporation or
by-laws of the Company or require any approval of the Company's stockholders,
(c) do not violate the General Corporation Law of the State of Delaware,
any law or regulation of the State of Illinois (including, without limitation,
any usury laws) or of the United States of America applicable to the Company,
(d) do not contravene that certain Indenture dated as of November 1,
1990, between the Company and Citibank, N.A., as Trustee, or, to our knowledge,
any other material agreement or instrument binding on the Company.
3. The Five Year Credit Agreement constitutes, and from and after the
initial Committed Borrowing the Committed Notes will constitute, the valid and
binding obligations of the Company, enforceable in accordance with their
respective terms.
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Company's execution or delivery of the Five Year Credit Agreement or the
Notes, or for the Company's performance of any of the terms thereof.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and enforceability
in Paragraph 3 above are subject to limitations imposed by any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights
Exhibit G - Page 2
generally. In addition, our opinions relating to enforceability in paragraph 3
above are subject to (i) the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law) and (ii) limitations
imposed by public policy under certain circumstances on the enforceability of
provisions indemnifying a party against liability for its own wrongful or
negligent acts. In applying principles of equity referred to in clause (i)
above, a court, among other things, might not allow a creditor to accelerate
maturity of a debt upon the occurrence of a default deemed immaterial. Such
principles applied by a court might include a requirement that a creditor act
reasonably and in good faith.
(b) Certain remedial and waiver provisions of the Five Year Credit
Agreement may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Five Year Credit Agreement;
however, the unenforceability of such provisions may result in delays in the
enforcement of the Administrative Agent's and the Banks' rights and remedies
under the Five Year Credit Agreement (and we express no opinion as to the
economic consequences, if any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the General Corporation Law of the State of Delaware, and
we express no opinion with respect to the laws of any other state or
jurisdiction.
Whenever in this opinion reference is made to our knowledge, such reference
is to the conscious awareness of [insert appropriate names] of information
regarding factual matters. With respect to such matters, such persons have not,
with your express permission and consent, undertaken any investigation or
inquiry either of other lawyers, files maintained by the firm, or officers or
employees of the Company or any of its Subsidiaries (including without
limitation the Borrowing Subsidiary). The reference to "conscious awareness" as
used in this paragraph has the meaning given that phrase in the Third-Party
Legal Opinion Report, Including the Legal Opinion Accord, of the Section of
Business Law, American Bar Association, 47 Bus. Law. 167, 192 (1991). The
opinions expressed herein are being delivered to you as of the date hereof and
are solely for your benefit in connection with the transactions contemplated in
the Five Year Credit Agreement and may not be relied on in any manner or for any
purpose by any other person, nor any copies published, communicated or otherwise
made available in whole or in part to any other person or entity without our
express prior written consent, except that you may furnish copies thereof to
each party that becomes a Bank after the date hereof pursuant to the Five Year
Credit Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no
Exhibit G - Page 3
obligation to revise or supplement this opinion should such facts change or
should such laws or regulations be changed by legislative or regulatory action,
judicial decision or otherwise, notwithstanding that such changes may affect the
legal analysis or conclusions contained in this opinion.
Very truly yours,
Exhibit G - Page 4
CERTIFICATE
I, ___________________, am the _____________ ___________________ of ▇.▇.
▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware corporation (the "Company"). The Company is
entering into the Five Year Credit Agreement dated as of October 10, 2002 among
the Company, the banks party thereto ("Banks") and Bank One, NA, as
Administrative Agent ("Administrative Agent") for such Banks (the "Five Year
Credit Agreement").
The Five Year Credit Agreement requires that [name of law firm] issue a
legal opinion to the Administrative Agent and the Banks. In connection with such
legal opinion, the Company certifies to [name of law firm] that:
1. Not more than twenty-five percent (25%) of the value of the assets
subject to any "arrangement" (as such term is used in Section 221.2(g)(1) of
Regulation U of the Board of Governors of the Federal Reserve System) under the
Five Year Credit Agreement is represented by "margin stock" (as such term is
defined in Regulation U of the Board of Governors of the Federal Reserve
System).
2. The Company has not granted to the Administrative Agent or the Banks any
direct security for the Company's obligations to the Administrative Agent and
the Banks under the Five Year Credit Agreement.
3. There is no material agreement or instrument binding on the Company that
governs or evidences indebtedness for borrowed money or would affect the
Company's ability to perform its obligations under the Five Year Credit
Agreement or the Notes, except:
a. _______________________
b. _______________________
c. _______________________
[COMPANY]
By:_____________________________________
Title:__________________________________
Dated: _____________________
Exhibit G - Page 5
EXHIBIT H
Opinion of Counsel to a Borrowing Subsidiary
[Date]
To each of the Banks parties to
the "Five Year Credit Agreement" (as defined below),
and to Bank One, NA, as Administrative Agent
Re: [Borrowing Subsidiary]
Ladies and Gentlemen:
We have acted as counsel to ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company, a Delaware
corporation (the "Company") and __________________, a ___________ corporation
and Subsidiary of the Company (the "Borrowing Subsidiary"), in connection with
the Five Year Credit Agreement dated as of October 10, 2002 (as the same has
been or may be amended, modified or supplemented, the "Five Year Credit
Agreement") among the Company, the financial institutions parties thereto (the
"Banks") and Bank One, NA, as Administrative Agent, and the transactions
contemplated thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.02(e) of the Five Year Credit Agreement. Capitalized terms used herein
and not otherwise defined are used as defined in the Five Year Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Five Year Credit
Agreement, the Assumption Letter of even date herewith executed by the Borrowing
Subsidiary and delivered to the Banks (the "Assumption Letter") and the
promissory notes executed by the Borrowing Subsidiary on the date hereof and
delivered to the Banks (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company and
the Borrowing Subsidiary (including the certificate attached hereto (the
"Certificate")), and (iii) other documents and records, and we have made such
inquiries of officers and representatives of the Company and the Borrowing
Subsidiary, as we have deemed relevant or necessary as the basis for such
opinions. We have relied as to factual matters upon, and assumed the accuracy
of, such certificates, the representations and warranties of the Company and the
Borrowing Subsidiary made (or deemed made) in the Five Year Credit Agreement and
the Assumption Letter, and other statements, documents and records supplied to
us by the Company and the Borrowing Subsidiary, and we have assumed the
genuineness of all signatures (other than signatures of officers of the
Borrowing Subsidiary) and the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as certified or photostatic copies.
Exhibit H - Page 1
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Five Year Credit Agreement and the Assumption
Letter, other than the Borrowing Subsidiary, are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of organization and have the requisite corporate power to enter into the Five
Year Credit Agreement and the Assumption Letter; and
(ii) the execution and delivery of the Five Year Credit Agreement have been
duly authorized by all necessary corporate action and proceedings on the part of
all parties thereto; the Five Year Credit Agreement has been duly executed and
delivered by all parties thereto and constitutes the valid and binding
obligation of all parties thereto, other than the Borrowing Subsidiary,
enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Borrowing Subsidiary has been duly organized and is validly existing
and in good standing under the laws of _____________. The Borrowing Subsidiary
has the requisite corporate power and authority to conduct its business as
currently conducted.
2. The Borrowing Subsidiary has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Assumption Letter, the
Five Year Credit Agreement and the Notes. Such execution, delivery and
performance:
(a) have been duly authorized by all necessary and proper corporate
action of the Borrowing Subsidiary,
(b) do not violate any provision of the certificate of incorporation or
by-laws of the Borrowing Subsidiary or require any approval of the Borrowing
Subsidiary's stockholders,
(c) will not violate any law or regulation of ____________, the State of
Illinois (including, without limitation, any usury laws) or of the United States
of America applicable to the Borrowing Subsidiary, and
(d) do not contravene any agreement set forth on the Certificate, or, to
our knowledge, any other material agreement or instrument binding on the
Borrowing Subsidiary.
3. The Assumption Letter constitutes, and from and after the initial
Committed Borrowing to the Borrowing Subsidiary, the Notes will constitute, the
valid and binding obligations of the Borrowing Subsidiary, enforceable in
accordance with their respective terms.
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Borrowing Subsidiary's execution or delivery of the Assumption Letter or the
Notes, or for the Borrowing Subsidiary's performance of any of the terms
thereof.
Our opinions above are subject to the following qualifications:
Exhibit H - Page 2
(a) Our opinions relating to validity, binding effect and enforceability
in Paragraph 3 above are subject to limitations imposed by any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights generally. In addition, our opinions
relating to enforceability in paragraph 3 above are subject to (i) the effect of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law) and (ii) limitations imposed by public policy under certain
circumstances on the enforceability of provisions indemnifying a party against
liability for its own wrongful or negligent acts. In applying principles of
equity referred to in clause (i) above, a court, among other things, might not
allow a creditor to accelerate maturity of a debt upon the occurrence of a
default deemed immaterial. Such principles applied by a court might include a
requirement that a creditor act reasonably and in good faith.
(b) Certain remedial and waiver provisions of the Five Year Credit
Agreement applicable to the Borrowing Subsidiary pursuant to the Assumption
Letter may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Assumption Letter; however, the
unenforceability of such provisions may result in delays in the enforcement of
the Administrative Agent's and the Banks' rights and remedies under the
Assumption Letter (and we express no opinion as to the economic consequences, if
any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the corporate law of [jurisdiction where the Borrowing
Subsidiary is incorporated] and we express no opinion with respect to the laws
of any other state or jurisdiction.
Whenever in this opinion reference is made to our knowledge, such reference
is to the conscious awareness of [insert appropriate names] of information
regarding factual matters. With respect to such matters, such persons have not,
with your express permission and consent, undertaken any investigation or
inquiry either of other lawyers, files maintained by the firm, or officers or
employees of the Company or any of its Subsidiaries (including without
limitation the Borrowing Subsidiary). The reference to "conscious awareness" as
used in this paragraph has the meaning given that phrase in the Third-Party
Legal Opinion Report, Including the Legal Opinion Accord, of the Section of
Business Law, American Bar Association, 47 Bus. Law. 167, 192 (1991).
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Five Year Credit Agreement and may not be relied on in any
manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity without our express prior written consent, except that you may furnish
copies thereof to each party that becomes a Bank after the date hereof pursuant
to the Five Year Credit
Exhibit H - Page 3
Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
Exhibit H - Page 4
CERTIFICATE
I, ___________________, am the _____________ ___________________ of
[Borrowing Subsidiary], a __________ corporation (the "Borrowing Subsidiary").
The Borrowing Subsidiary is entering into an Assumption Letter dated as of
_____________, 20__, pursuant to which it will become a party to the Five Year
Credit Agreement dated as of October 10, 2002 among ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons
Company (the "Company"), the banks party thereto ("Banks") and Bank One, NA, as
Administrative Agent ("Administrative Agent") for such Banks (the "Five Year
Credit Agreement").
The Five Year Credit Agreement requires that [name of law firm] issue a
legal opinion to the Administrative Agent and the Banks. In connection with such
legal opinion, the Company certifies to [name of law firm] that:
1. Not more than twenty-five percent (25%) of the value of the assets
subject to any "arrangement" (as such term is used in Section 221.2(g)(1) of
Regulation U of the Board of Governors of the Federal Reserve System) under the
Five Year Credit Agreement is represented by "margin stock" (as such term is
defined in Regulation U of the Board of Governors of the Federal Reserve
System).
2. The Borrowing Subsidiary has not granted to the Administrative Agent or
the Banks any direct security for the Company's or the Borrowing Subsidiary's
obligations to the Administrative Agent and the Banks under the Five Year Credit
Agreement.
3. There is no material agreement or instrument binding on the Borrowing
Subsidiary that governs or evidences indebtedness for borrowed money or would
affect the Borrowing Subsidiary's ability to perform its obligations under the
Assumption Letter, the Five Year Credit Agreement or the Notes, except:
a. _______________________
b. _______________________
c. _______________________
[BORROWING SUBSIDIARY]
By:_____________________________________
Title:__________________________________
Dated: _____________________
Exhibit H - Page 5