$625,000,000
AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT
among
ARROW ELECTRONICS, INC.,
THE SUBSIDIARY BORROWERS
The Several Banks
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Syndication Agent
FLEET NATIONAL BANK,
as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
---------
▇▇ ▇▇▇▇▇▇,
a division of Chase Securities Inc.,
as Arranger
Dated as of February 22, 2001
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 21
1.3 Accounting Determinations 21
SECTION 2. THE COMMITTED RATE LOANS 21
2.1 Committed Rate Loans 21
2.2 Procedure for Committed Rate Loan Borrowing 22
2.3 Repayment of Committed Rate Loans; Evidence of Debt 22
2.4 Termination or Reduction of Commitments 23
2.5 Optional Prepayments 23
2.6 Conversion and Continuation Options 23
2.7 Minimum Amounts of Tranches 24
2.8 Interest Rates and Payment Dates for Committed Rate Loans 24
2.9 Inability to Determine Interest Rate 24
2.10 Commitment Increases 24
2.11 Refunding of Committed Rate Loans Denominated
in Available Foreign Currencies 24
2.12 Certain Borrowings of Committed Rate Loans and Refunding of Loans 24
SECTION 3. THE COMPETITIVE ADVANCE LOANS 29
3.1 Competitive Advance Loans 29
3.2 Procedure for Competitive Advance Loan Borrowing 30
3.3 Repayment of Competitive Advance Loans; Evidence of Debt 31
3.4 Prepayments 32
SECTION 4. THE SWING LINE LOANS 32
4.1 Swing Line Loans 32
4.2 Procedure for Swing Line Borrowing 32
4.3 Repayment of Swing Line Loans; Evidence of Debt 32
4.4 Allocating Swing Line Loans; Swing Line Loan Participations 33
SECTION 5. THE LETTERS OF CREDIT 34
5.1 L/C Commitment. 34
5.2 Procedure for Issuance of Letters of Credit under this Agreement. 35
5.3 Fees, Commissions and Other Charges. 35
5.4 L/C Participations. 36
5.5 Reimbursement Obligation of the Specified Borrowers. 37
5.6 Obligations Absolute. 37
5.7 Letter of Credit Payments. 38
5.8 Application. 38
SECTION 6. LOCAL CURRENCY FACILITIES 38
6.1 Terms of Local Currency Facilities 38
6.2 Reporting of Local Currency Outstandings 40
6.3 Refunding of Local Currency Loans 40
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND LETTERS
Of CREDIT 42
7.1 Facility Fee, Other Fees 42
7.2 Computation of Interest and Fees 42
7.3 Pro Rata Treatment and Payments 42
7.4 Illegality 43
7.5 Requirements of Law 44
7.6 Taxes 46
7.7 Company's Options upon Claims for Increased Costs and Taxes 48
7.8 Break Funding Payments 49
7.9 Determinations 50
7.10 Change of Lending Office 50
7.11 Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments 50
SECTION 8. REPRESENTATIONS AND WARRANTIES 51
8.1 Financial Condition 51
8.2 No Change 52
8.3 Corporate Existence; Compliance with Law 52
8.4 Corporate Power; Authorization; Enforceable Obligations 52
8.5 No Legal Bar 53
8.6 No Material Litigation 53
8.7 No Default 53
8.8 Ownership of Property; Liens 53
8.9 Intellectual Property 53
8.10 Local Currency Facilities Error! Bookmark not defined.
8.11 Taxes 53
8.12 Federal Regulations 54
8.13 ERISA 54
8.14 Investment Company Act; Other Regulations 55
8.15 Subsidiaries 55
8.16 Accuracy and Completeness of Information 55
8.17 Purpose of Loans 55
8.18 Environmental Matters 56
SECTION 9. CONDITIONS PRECEDENT 57
9.1 Conditions to Closing Date 57
9.2 Conditions to Each Extension of Credit 58
SECTION 10. AFFIRMATIVE COVENANTS 59
10.1 Financial Statements 59
10.2 Certificates; Other Information 60
10.3 Payment of Obligations 61
10.4 Conduct of Business and Maintenance of Existence 61
10.5 Maintenance of Property; Insurance 62
10.6 Inspection of Property; Books and Records; Discussions 62
10.7 Notices 62
10.8 Environmental Laws 63
10.9 Additional Subsidiary Guarantees
10.10 Foreign Subsidiary Borrowers
SECTION 11. NEGATIVE COVENANTS 63
11.1 Financial Condition Covenants 63
11.2 Limitation on Indebtedness of Domestic Subsidiaries 64
11.3 Limitation on Liens 64
11.4 Limitation on Fundamental Changes 65
SECTION 12. EVENTS OF DEFAULT 66
SECTION 13. THE ADMINISTRATIVE AGENT AND THE AGENTS; THE ARRANGER 68
13.1 Appointment 68
13.2 Delegation of Duties 69
13.3 Exculpatory Provisions 69
13.4 Reliance by Administrative Agent 69
13.5 Notice of Default 70
13.6 Non-Reliance on Administrative Agent and Other Banks 70
13.7 Indemnification 70
13.8 Administrative Agent in Its Individual Capacity 71
13.9 Successor Administrative Agent 71
13.10 The Agents and the Arranger 71
SECTION 14. MISCELLANEOUS 71
14.1 Amendments and Waivers 71
14.2 Notices 74
14.3 No Waiver; Cumulative Remedies 75
14.4 Survival of Representations and Warranties 75
14.5 Payment of Expenses and Taxes 75
14.6 Successors and Assigns; Participations and Assignments 76
14.7 Adjustments; Set-off 78
14.8 Power of Attorney 79
14.9 Judgment 79
14.10 Counterparts 80
14.11 Severability 80
14.12 Integration 80
14.13 GOVERNING LAW 80
14.14 Submission To Jurisdiction; Waivers 80
14.15 Acknowledgements 81
14.16 WAIVERS OF JURY TRIAL 82
SCHEDULES
I - Banks and Commitments
II - Subsidiary Borrowers
III - Certain Information Concerning Swing Line
Loans and Letters of Credit
IV - Administrative Schedule
8.10 - Outstanding Local Currency Loans
8.13 - Excluded ERISA Arrangements
8.15 - Subsidiaries
8.18 - Environmental Matters
EXHIBITS
Exhibit A - Form of Joinder Agreement
Exhibit B - Form of Schedule Amendment
Exhibit C - Form of Local Currency Facility Addendum
Exhibit D - [Reserved]
Exhibit E - Form of Borrowing Certificate
Exhibit F-1 - Form of Company Guarantee
Exhibit F-2 - Form of Subsidiary Guarantee
Exhibit G-1 - Form of Opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Exhibit G-2 - Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exhibit G-3 - Opinions Relating to Foreign Subsidiary Borrowers
Exhibit H - Form of Certificate Pursuant to Subsection 10.2
Exhibit I - Form of Assignment and Acceptance
Exhibit J - [Reserved]
Exhibit K - Form of New Bank Supplement
Exhibit L - Form of Commitment Increase Supplement
AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT, dated as of February
22, 2001, among:
(i) ARROW ELECTRONICS, INC., a New York corporation (the "Company");
(ii) the SUBSIDIARY BORROWERS (as hereinafter defined);
(iii) the several banks and other financial institutions from time to time
parties to this Agreement (the "Banks");
(iv) BANK OF AMERICA, N.A., as syndication agent for the Banks hereunder
(in such capacity, the "Syndication Agent");
(v) FLEET NATIONAL BANK, as documentation agent for the Banks hereunder
(in such capacity, the "Documentation Agent"); and
(vi) THE CHASE MANHATTAN BANK, as administrative agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Banks to make available a three
year revolving credit facility that amends and restates the Second Amended
and Restated Credit Agreement, dated as of August 16, 1995, among the
Company, certain of its subsidiaries, certain financial institutions, Chase
Securities Inc., as arranger, Bankers Trust Company, as collateral agent, and
The Chase Manhattan Bank, as administrative agent (as in effect on the date
hereof, the "Existing Credit Agreement"); and
WHEREAS, the Banks are willing to make such credit facility available
upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree that, effective as of the
Closing Date (as defined below), the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect at
its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by Chase in connection with extensions
of credit to debtors); "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by
it; and "Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective as of the opening
of business on the effective day of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans denominated in Dollars the rate of interest applicable to
which is based upon the ABR.
"Acceleration Date": any date on which the Commitments shall have been
terminated and/or the Loans shall have been declared immediately due and
payable pursuant to Section 12.
"Additional Local Currencies": Australian Dollars, Singapore Dollars, New
Taiwan Dollars and any other available and freely convertible non-Dollar
currency selected by the Company and approved by the Administrative Agent in
the manner described in subsection 14.1(b).
"Adjusted Consolidated EBITDA": for any fiscal period, (a) the Consolidated
Net Income of the Company and its Subsidiaries for such period, plus (b) to
the extent deducted from earnings in determining Consolidated Net Income for
such period, the sum, in each case for such period, of income taxes, interest
expense, depreciation expense, amortization expense, including amortization
of any goodwill or other intangibles, minus (c) to the extent included in
determining Consolidated Net Income for such period, non-cash equity earnings
of unconsolidated Affiliates, plus (d) to the extent excluded in determining
Consolidated Net Income for such period, cash distributions received by the
Company from unconsolidated Affiliates, all as determined on a consolidated
basis in accordance with GAAP.
"Administrative Schedule": Schedule IV to this Agreement, which contains
interest rate definitions and administrative information in respect of each
Currency and each Type of Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affected Bank": any Bank affected by the events described in subsection
7.4, 7.5 or 7.6, as the case may be, but only for the period during which
such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or (b) any Person who is a
director or officer of the Company or any of its Subsidiaries. For purposes
of this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Syndication Agent and the
Documentation Agent.
"Aggregate Commitments": the aggregate amount of the commitments hereunder
and of the Commitments under (and as defined in) the 364-Day Credit
Agreement.
"Aggregate Committed Outstandings": the aggregate outstanding principal or
face amount of the Committed Rate Loans, Swing Line Loans, Letters of Credit
and Local Currency Loans hereunder plus the aggregate outstanding principal
amount of the Committed Rate Loans and Swing Line Loans under (and as defined
in) the 364-Day Credit Agreement.
"Agreement": this Amended and Restated Three Year Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Allocable Share": as to any Assenting Bank at any time, a fraction, the
numerator of which shall be the Commitment of such Assenting Bank then in
effect and the denominator of which shall be the aggregate of the Commitments
of all Assenting Banks then in effect.
"Applicable Margin": for each Type of Loan, (i) for the period from and
including the Closing Date to and including September 30, 2001, 72.50 basis
points, and (ii) on any date thereafter, the rate per annum determined based
upon the Rating in effect on such date by both S&P and ▇▇▇▇▇'▇ set forth
under the relevant column heading below opposite such Rating: Rating
(S&P/▇▇▇▇▇'▇) Applicable Margin (in basis points) for Eurocurrency
LoansGreater than or equal to A-/A351.50 Greater than or equal to BBB+/Baa1
62.50Greater than or equal to BBB/Baa272.50 Greater than or equal to BBB-
/Baa3 82.50 Less than BBB-/Baa3 100.00; provided that, in the event that the
Ratings of S&P and ▇▇▇▇▇'▇ do not coincide, the Applicable Margin set forth
above opposite the lower of such Ratings will apply, or if there is no Rating
in effect, the Applicable Margin will be based on the rating of less than
BBB-/Baa3.
"Application": an application, in such form as the Issuing Bank may specify
from time to time, requesting the Issuing Bank to issue a Letter of Credit.
"Arranger": ▇▇ ▇▇▇▇▇▇, a division of Chase Securities Inc., as sole advisor,
lead arranger and bookrunner.
"Assenting Bank": as defined in subsection 7.7(a).
"Assignee": as defined in subsection 14.6(c).
"Assignment and Acceptance": each Assignment and Acceptance, substantially
in the form of Exhibit I, executed and delivered pursuant to subsection
14.6(c).
"Available Foreign Currencies": (i) with respect to Committed Rate Loans and
Swing Line Loans, Pounds Sterling, euro, Hong Kong Dollars and Swedish
Kroner, and any other currency agreed upon by the Company, the Administrative
Agent and all of the Banks, and (ii) with respect to Competitive Advance
Loans, any currency agreed upon by the Borrower of such Competitive Advance
Loan and the Bank that makes such Competitive Advance Loan. "Banks": as
defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System or any
successor.
"Borrowers": the collective reference to the Company, the Subsidiary
Borrowers and the Local Currency Borrowers.
"Borrowing Date": any Business Day on which the Company or any Subsidiary
Borrower requests the Banks to make Loans hereunder.
"Borrowing Percentage": (a) with respect to Committed Rate Loans denominated
in Dollars to be made by any Bank at any time, the ratio (expressed as a
percentage) of the amount of such Bank's Undrawn Commitment at such time to
the aggregate amount of the Undrawn Commitments of all the Banks at such
time; provided, that in determining any Bank's Undrawn Commitment for purpose
of determining such Bank's Borrowing Percentage of any such Committed Rate
Loans whose proceeds will be simultaneously applied to repay Swing Line Loans
or Local Currency Loans or to pay Reimbursement Obligations, such Bank's
Commitment Percentage of the amount of such Swing Line Loans and
Reimbursement Obligations, and the amount of such Local Currency Loans owing
to such Bank, will not be considered Committed Exposure of such Bank (such
Borrowing Percentage of each Bank at any time to be calculated by the
Administrative Agent on the basis of its most recent calculations of the
Undrawn Commitments of the Banks) and (b) with respect to Committed Rate
Loans denominated in any Available Foreign Currency to be made by any Bank at
any time, a percentage equal to such Bank's Foreign Currency Commitment
Percentage in the Currency of such Committed Rate Loans.
"Business": as defined in subsection 8.18(b).
"Business Day": (a) when such term is used in respect of any amount
denominated or to be denominated in (i) any Available Foreign Currency, a
London Banking Day which is also a day other than a Saturday or Sunday on
which banks are open for general banking business in (x) the city which is
the principal financial center of the country of issuance of such Available
Foreign Currency, (y) in the case of euro only, Frankfurt am Main, Germany
(or such other principal financial center as the Administrative Agent may
from time to time nominate for this purpose) and (z) New York City and (ii)
Dollars, a London Banking Day which is also a day other than a Saturday or
Sunday on which banks are open for general banking business in New York City
and (b) when such term is used for the purpose of determining the date on
which the Eurocurrency Rate is determined under this Agreement for any Loan
denominated in euro for any Interest Period therefor and for purposes of
determining the first and last day of any Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the net
annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of Chase in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board) in respect
of new non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other than a corporation) and
any and all warrants, options or rights to purchase any of the foregoing.
"Change in Control": one or more of the following events:
(a) less than a majority of the members of the Company's board of
directors shall be persons who either (i) were serving as directors on the
Closing Date or (ii) were nominated as directors and approved by the vote of
the majority of the directors who are directors referred to in clause (i)
above or this clause (ii);
or
(b) the stockholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company; or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the Capital Stock of the Company as
of the Closing Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become
the direct or indirect beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time) of
securities of the Company representing 40% or more of the combined voting
power of the outstanding voting securities for the election of directors or
shall have the right to elect a majority of the board of directors of the
Company.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth in
subsection 9.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitment": as to any Bank, the obligation of such Bank to make and/or
acquire participating interests in Committed Rate Loans or Swing Line Loans
hereunder and/or under Local Currency Facilities and issue and/or acquire
participating interests in Letters of Credit hereunder in an aggregate Dollar
Equivalent Amount at any one time outstanding not to exceed the amount set
forth opposite such Bank's name on Schedule I under the caption "Dollar
Commitment Amount", as such amount may be changed from time to time in
accordance with the provisions of this Agreement.
"Commitment Increase Notice": as defined in subsection 2.10(a).
"Commitment Increase Supplement": as defined in subsection 2.10(c).
"Commitment Percentage": as to any Bank at any time, the percentage which
such Bank's Commitment then constitutes of the aggregate Commitments (or, at
any time after the Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Exposure at such time constitutes
of the aggregate amount of the Exposure of all the Banks at such time).
"Commitment Period": the period from and including the Closing Date to and
including the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein.
"Committed Exposure": as to any Bank, the sum of (a) the aggregate Dollar
Equivalent Amount of the principal amount of all outstanding Committed Rate
Loans and Local Currency Loans made by such Bank or its Local Currency Bank
affiliates, agencies or branches plus (b) such Bank's Commitment Percentage
of the aggregate Dollar Equivalent Amount of the principal or face amount of
all outstanding Swing Line Loans and L/C Obligations.
"Committed Rate Loan": as defined in subsection 2.1; a Committed Rate Loan
bearing interest based upon the ABR shall be a "Committed Rate ABR Loan", and
a Committed Rate Loan bearing interest based upon a Eurocurrency Rate shall
be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001
of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
"Company Guarantee": the Guarantee of the Company, substantially in the form
of Exhibit F-1, as amended, supplemented or otherwise modified from time to
time.
"Competitive Advance Loan": as defined in subsection 3.1.
"Competitive Advance Loan Offer": with respect to any Competitive Advance
Loan Request in any Currency, an offer from a Bank in respect of such
Competitive Advance Loan Request, containing the information in respect of
such Competitive Advance Loan Offer and delivered to the Person, in the
manner and by the time specified for a Competitive Advance Loan Offer in
respect of such Currency in the Administrative Schedule.
"Competitive Advance Loan Request": with respect to any Competitive Advance
Loan in any Currency, a request from the Specified Borrower in respect of
such Loan, containing the information in respect of such Competitive Advance
Loan and delivered to the Person, in the manner and by the time specified for
a Competitive Advance Loan Request in respect of such Currency in the
Administrative Schedule.
"Consolidated Cash Interest Expense": for any period, (a) the amount which
would, in conformity with GAAP, be set forth opposite the caption "interest
expense" or any like caption on a consolidated income statement of the
Company and its Subsidiaries minus (b) the amount of non-cash interest
(including interest paid by the issuance of additional securities) included
in such amount; provided that in the event of the consummation of any
Permitted Receivables Securitization, "Consolidated Cash Interest Expense"
shall be adjusted to include (without duplication) an amount equal to the
interest (or other fees in the nature of interest or discount) accrued and
paid or payable in cash for such period by the special purpose entity to the
Receivable Financiers under such Permitted Receivables Securitization.
"Consolidated Net Income": for any fiscal period, the consolidated net
income (or loss) of the Company and its Subsidiaries after excluding all
unusual, extraordinary and non-recurring gains and after adding all unusual,
extraordinary and non-recurring losses, in all cases of the Company and its
Subsidiaries determined on a consolidated basis during the relevant period in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which would be
included under shareholders' equity on a consolidated balance sheet of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum of (a)
Consolidated Net Worth plus (b) Consolidated Total Debt as at such date.
"Consolidated Total Debt": at the date of determination thereof, (i) all
Indebtedness of the Company and its Subsidiaries (excluding Indebtedness of
the Company owing to any of its Subsidiaries or Indebtedness of any
Subsidiary of the Company owing to the Company or any other Subsidiary of the
Company), as determined on a consolidated basis in accordance with GAAP plus
(ii) without duplication of amounts included in clause (i) above, an amount
equal to the aggregate unpaid amount of cash proceeds advanced by the
Receivables Financiers to the special purpose entity under any Permitted
Receivables Securitization at the date of determination.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Documents": this Agreement, the Applications, the Subsidiary
Guarantees, the Company Guarantee and the Local Currency Facilities.
"Currencies": the collective reference to Dollars and Foreign Currencies.
"Default": any of the events specified in Section 12, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) the amount of any Foreign
Currency on any date, the equivalent amount in Dollars of such amount of
Foreign Currency, as determined by the Administrative Agent using the
Exchange Rate and (ii) any amount in Dollars, such amount.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such Person
organized under the laws of a State of the United States or the District of
Columbia.
"Domestic Subsidiary Borrower": each Subsidiary of the Company listed as a
Domestic Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 14.1(b)(i).
"Environmental Laws": any and all applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including, without limitation, common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"euro": the single currency of participating member states of the European
Union.
"Eurocurrency Loan": any Loan bearing interest based upon a Eurocurrency
Rate.
"Eurocurrency Rate": in respect of Dollars and each Available Foreign
Currency, the rate determined as the Eurocurrency Rate for Dollars or such
Available Foreign Currency in the manner set forth in the Administrative
Schedule.
"Event of Default": any of the events specified in Section 12, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Exchange Rate": with respect to any Foreign Currency on any date, the rate
at which such Foreign Currency may be exchanged into Dollars, as set forth on
such date on the relevant Reuters currency page at or about 11:00 a.m. London
time on such date. In the event that such rate does not appear on any
Reuters currency page, the "Exchange Rate" with respect to such Foreign
Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the Company or, in the absence of such agreement,
such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at
or about 10:00 a.m., local time, at such date for the purchase of Dollars
with such Foreign Currency, for delivery two Business Days later; provided,
that if at the time of any such determination, no such spot rate can
reasonably be quoted, the Administrative Agent may use any reasonable method
as it deems applicable to determine such rate, and such determination shall
be conclusive absent manifest error (without prejudice to the determination
of the reasonableness of such method).
"Existing Credit Agreement": as defined in the recitals hereof.
"Exposure": at any date, (a) as to all the Banks, the aggregate Dollar
Equivalent Amount of (i) the outstanding principal amount of all Loans then
outstanding and (ii) all L/C Obligations then outstanding, (b) as to any
Bank, the aggregate Dollar Equivalent Amount of (i) the outstanding principal
amount of all Committed Rate Loans, Local Currency Loans and Competitive
Advance Loans made by such Bank or its Local Bank affiliates, branches or
agencies and (ii) such Bank's Commitment Percentage of the outstanding
principal amount of all Swing Line Loans and L/C Obligations and (c) as to
any Borrower, the aggregate Dollar Equivalent Amount of the outstanding
principal amount of all Loans to such Borrower then outstanding.
"Extensions of Credit": the collective reference to the making of any Loans
(including, without limitation, participating in any Swing Line Loans) and
the issuance of, or participation in, any Letters of Credit but excluding the
continuation or conversion of any Loan pursuant to a Notice of Conversion or
a Notice of Continuation.
"Facility Fee Rate": (i) for the period from and including the Closing Date
to and including September 30, 2001, 15.00 basis points and (ii) for any date
thereafter, a rate per annum determined based upon the Rating in effect on
such date by both S&P and Moody's set forth under the relevant column heading
below opposite such Rating:
Rating (S&P/Moody's) Facility Fee Rate (in basis points)
Greater than or equal to A-/A3 11.00
Greater than or equal to BBB+/Baa1 12.50Greater than or equal to BBB/Baa2
15.00 Greater than or equal to BBB-/Baa3 17.50 Less than BBB-/Baa3 25.00 ;
provided that, in the event that the Ratings of S&P and Moody's do not
coincide, the Facility Fee Rate set forth above opposite the lower of such
Ratings will apply, or if there is no Rating in effect, the Facility Fee Rate
will be based on the rating of less than BBB-/Baa3.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Foreign Currencies": the collective reference to the Available Foreign
Currencies and the Additional Local Currencies.
"Foreign Currency Commitment": as to any Bank and any Available Foreign
Currency, the obligation of such Bank to make Committed Rate Loans hereunder
denominated in such Available Foreign Currency in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Bank's name on Schedule I under the caption "[Name of
applicable Available Foreign Currency] Commitment Amount", as such amount may
be changed from time to time in accordance with the provisions of this
Agreement.
"Foreign Currency Commitment Percentage": as to any Bank and any Available
Foreign Currency at any time, the percentage which such Bank's Foreign
Currency Commitment in such Available Foreign Currency then constitutes of
the aggregate Foreign Currency Commitments of all Banks in such Available
Foreign Currency.
"Foreign Currency Exposure": at any date, the aggregate Dollar Equivalent
Amount of (a) the outstanding principal amount of all Loans then outstanding
which are denominated in a currency other than Dollars and (b) all L/C
Obligations then outstanding which are denominated in a currency other than
Dollars.
"Foreign Currency Exposure Sublimit": at any date, (a) with respect to
euros, a Dollar Equivalent Amount equal to $400,000,000, (b) with respect to
Pounds Sterling, a Dollar Equivalent Amount equal to $200,000,000, (c) with
respect to Hong Kong Dollars, a Dollar Equivalent Amount equal to
$150,000,000, and (d) with respect to Swedish Kroner, a Dollar Equivalent
Amount equal to $200,000,000.
"Foreign Subsidiary Borrower": each Subsidiary of the Company listed as a
Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 14.1(b)(i); provided that with respect to any
Subsidiary for which a Foreign Subsidiary Opinion has not previously been
delivered, if the aggregate Exposure of such Subsidiary owing to all Banks
exceeds $20,000,000 for a period of 30 consecutive days, then, unless a
Foreign Subsidiary Opinion is delivered within 30 days after the end of such
period, such Subsidiary shall cease to be a Foreign Subsidiary Borrower 30
days after the end of such period with respect to all Exposure of such
Subsidiary owing to the Banks in excess of $20,000,000.
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Banks concluding that such
Foreign Subsidiary Borrower and the Credit Documents to which it is a party
substantially comply with the matters listed on Exhibit G-3 hereto, with such
deviations therefrom as the Administrative Agent shall consent (such consent
not to be unreasonably withheld).
"Funding Office": (i) for each Type of Committed Rate Loan and each
Currency, the Funding Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as agreed
by the Borrower that borrows such Competitive Advance Loan, the Bank that
makes such Competitive Advance Loan and the Administrative Agent.
"Funding Time": (i) for each Type of Committed Rate Loan and each Currency,
the Funding Time set forth in respect thereof in the Administrative Schedule
and (ii) for each Competitive Advance Loan, as agreed by the Borrower that
borrows such Competitive Advance Loan, the Bank that makes such Competitive
Advance Loan and the Administrative Agent.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Governing Documents": as to any Person, the certificate or articles of
incorporation and by-laws or other organizational or governing documents of
such Person.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability
in respect thereof as determined by the Company in good faith.
"Guarantor": the Company or any Subsidiary in its capacity as a party to the
Company Guarantee or a Subsidiary Guarantee, as the case may be.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any swap,
futures, forward or option agreements or other agreements or arrangements
designed to limit or eliminate the risk and/or exposure of a Person to
fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or affiliates which
from time to time enter into Hedging Agreements with the Company or any of
its Subsidiaries.
"Increasing Bank": as defined in subsection 2.10(c).
"Indebtedness": of any Person at any date, without duplication, (a) the
principal amount of all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) the portion of all obligations of such Person under
Financing Leases which must be capitalized in accordance with GAAP, (d) the
principal or stated amount of all obligations of such Person in respect of
letters of credit, banker's acceptances or similar obligations issued or
created for the account of such Person, (e) all liabilities arising under
Hedging Agreements of such Person, (f) the principal or stated amount of all
Guarantee Obligations of such Person (other than guarantees by the Company or
any Subsidiary in respect of current trade liabilities of the Company or any
Subsidiary incurred in the ordinary course of business and payable in
accordance with customary terms), and (g) the principal amount of all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof.
"Initial Subsidiary Guarantee": the Subsidiary Guarantee executed on the
Closing Date by Support Net, Inc., an Indiana corporation, Gates/Arrow
Distributing, Inc., a Delaware corporation, and Mid Range Open Computing
Alliance, Inc., a Delaware corporation, substantially in the form of Exhibit
F-2, as the same may be amended, supplemented or otherwise modified from time
to time.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each March,
June, September and December, (b) as to any Committed Rate Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Committed Rate Eurocurrency Loan having an
Interest Period longer than three months, each day which is three months
after the first day of such Interest Period and the last day of such Interest
Period, (d) as to any Swing Line Loan, the last Business Day of each calendar
month during which such Swing Line Loan is outstanding, and (e) as to any
Competitive Advance Loan, the date or dates set forth in the applicable
Competitive Advance Loan Request or otherwise agreed upon by the relevant
Borrower and Bank at the time the terms of such Competitive Advance Loan are
determined as provided in subsection 3.2.
"Interest Period": with respect to any Committed Rate Eurocurrency Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower in its Notice of Borrowing or Notice of Conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower by a Notice of Continuation with respect thereto; provided that, all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Company is a party
or a beneficiary.
"Issuing Bank": in respect of any Currency, each Bank listed as an Issuing
Bank in Schedule III in respect of such Currency.
"Issuing Office": in respect of each Issuing Bank, the Issuing Office set
forth for such Issuing Bank in Schedule III.
"Joinder Agreement": each Joinder Agreement, substantially in the form of
Exhibit A, from time to time executed and delivered hereunder pursuant to
subsection 14.1 (b).
"L/C Commitment": the Dollar Equivalent Amount of $100,000,000.
"L/C Obligations": at any time, an amount equal to the sum of the Dollar
Equivalent Amount of (a) the aggregate then undrawn and unexpired amount of
the then outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit which have not then been reimbursed pursuant
to subsection 5.5(a).
"L/C Participant": in respect of each Letter of Credit, each Bank (other
than the Issuing Bank in respect of such Letter of Credit) in its capacity as
the holder of a participating interest in such Letter of Credit.
"Letters of Credit": as defined in subsection 5.1(b).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan": any Committed Rate Loan, Competitive Advance Loan, Swing Line Loan
or Local Currency Loan.
"Loan Parties": the Company and each Subsidiary of the Company which is a
party to a Credit Document.
"Local Currency Bank": any Bank (or, if applicable, any affiliate, branch or
agency thereof) party to a Local Currency Facility.
"Local Currency Bank Maximum Borrowing Amount": as defined in subsection
6.1(b).
"Local Currency Borrower": each Subsidiary of the Company organized under
the laws of a jurisdiction outside the United States that the Company
designates as a
"Local Currency Borrower" in a Local Currency Facility Addendum.
"Local Currency Facility": any Qualified Credit Facility that the Company
designates as a "Local Currency Facility" pursuant to a Local Currency
Facility Addendum or that is set forth on Schedule 8.10.
"Local Currency Facility Addendum": a Local Currency Facility Addendum
received by the Administrative Agent, substantially in the form of Exhibit C
and conforming to the requirements of Section 6.
"Local Currency Facility Agent": with respect to each Local Currency
Facility, the Local Currency Bank acting as agent for the Local Currency
Banks party thereto.
"Local Currency Facility Maximum Borrowing Amount": as defined in subsection
6.1(b).
"Local Currency Loan": any loan made pursuant to a Local Currency Facility.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, (b) the ability of the Company
to perform its obligations under this Agreement or other Credit Documents or
(c) the validity or enforceability of this Agreement or any of the other
Credit Documents or the rights or remedies of the Administrative Agent or the
Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"New Bank": as defined in subsection 2.10(b).
"New Bank Supplement": as defined in subsection 2.10(b).
"Non-Excluded Taxes": as defined in subsection 7.6.
"Notice of Borrowing": with respect to a Committed Rate Loan of any Type in
any Currency, a notice from the Specified Borrower in respect of such Loan,
containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Borrowing in
respect of such Currency and such Type of Loan in the Administrative
Schedule.
"Notice of Continuation": with respect to a Committed Rate Eurocurrency Loan
in any Currency, a notice from the Specified Borrower in respect of such
Loan, containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Continuation
in respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan in Dollars
which a Specified Borrower wishes to convert from a Eurocurrency Loan to an
ABR Loan, or from an ABR Loan to a Eurocurrency Loan, as the case may be, a
notice from such Borrower setting forth the amount of such Loan to be
converted, the date of such conversion and, in the case of conversions of ABR
Loans to Eurocurrency Loans, the length of the initial Interest Period
applicable thereto. Each Notice of Conversion shall be delivered to the
Administrative Agent at its address set forth in subsection 14.2 and shall be
delivered before 12:00 Noon, New York City time, on the Business Day of the
requested conversion in the case of conversions to ABR Loans, and before
12:00 Noon, New York City time, three Business Days before the requested
conversion in the case of conversions to Eurocurrency Loans.
"Notice of Local Currency Outstandings": with respect to each Local Currency
Facility Agent, a notice from such Local Currency Facility Agent containing
the information, delivered to the Person, in the manner and by the time,
specified for a Notice of Local Currency Outstandings in the Administrative
Schedule.
"Notice of Prepayment": with respect to prepayment of any Committed Rate
Loan of any Type in any Currency, a notice from the Specified Borrower in
respect of such Loan, containing the information in respect of such
prepayment and delivered to the Person, in the manner and by the time
specified for a Notice of Prepayment in respect of such Currency and such
Type of Loan in the Administrative Schedule.
"Notice of Swing Line Borrowing": with respect to a Swing Line Loan of any
Type in any Currency, a notice from the Specified Borrower in respect of such
Loan, containing the information in respect of such Swing Line Loan and
delivered to the Person, in the manner and by the time agreed by the Company
and the applicable Swing Line Bank in respect of such Currency and such Type
of Loan.
"Notice of Swing Line Outstandings": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Outstandings in the Administrative Schedule.
"Notice of Swing Line Refunding": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Refunding in the Administrative Schedule.
"Objecting Bank": as defined in subsection 14.1(e).
"Offered Increase Amount": as defined in subsection 2.10(a).
"Participant": as defined in subsection 14.6(b).
"Payment Office": (i) for each Type of Committed Rate Loan and each
Currency, the Payment Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as agreed
by the Borrower that borrows such Competitive Advance Loan, the Bank that
makes such Competitive Advance Loan and the Administrative Agent.
"Payment Time": for each Type of Committed Rate Loan and each Currency, the
Payment Time set forth in respect thereof in the Administrative Schedule and
(ii) for each Competitive Advance Loan, as agreed by the Borrower that
borrows such Competitive Advance Loan, the Bank that makes such Competitive
Advance Loan and the Administrative Agent.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Permitted Receivables Securitization": any transaction involving one or
more sales, contributions or other conveyances by the Company or any
Subsidiary of any Receivables to a special purpose entity (which may be a
Subsidiary or Affiliate of the Company), which special purpose entity
finances such sales, contributions or other conveyances by in turn conveying
an interest in such Receivables to one or more Receivable Financiers,
provided that such transaction shall not involve any recourse to the Company
or any Subsidiary (other than such special purpose entity) for any reason
other than (i) repurchases of non-eligible Receivables, (ii) indemnification
for losses (including any adjustments for dilutions), other than credit
losses related to the Receivables conveyed in such transaction and (iii)
payment of costs, fees, expenses and indemnities relating to such
transaction.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pounds", "Pounds Sterling" and "Sterling": the lawful currency of the
United Kingdom.
"Properties": as defined in subsection 8.18(a).
"Qualified Credit Facility": a credit facility (a) providing for one or more
Local Currency Banks to make loans denominated in an Additional Local
Currency to a Local Currency Borrower, (b) providing for such loans to bear
interest at a rate or rates determined by the Company and such Local Currency
Bank or Local Currency Banks and (c) otherwise conforming to the requirements
of Section 6.
"Ratings": the actual or implied senior unsecured non-credit enhanced debt
ratings of the Company in effect from time to time by Moody's or S&P, as the
case may be, the bank debt rating of the Company in effect from time to time
by Moody's or the corporate credit rating of the Company in effect from time
to time by S&P.
"Re-Allocation Date": as defined in subsection 2.10(e).
"Receivables": all accounts receivable of the Company or any of its
Subsidiaries, and all proceeds thereof and rights (contractual and other) and
collateral related thereto.
"Receivable Financier": any Person (other than a Subsidiary or Affiliate of
the Company) that finances the acquisition by a special purpose entity of
Receivables from the Company or any Subsidiary.
"Register": as defined in subsection 14.6(d).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reimbursement Obligation": in respect of each Letter of Credit, the
obligation of the account party thereunder to reimburse the Issuing Bank for
all drawings made thereunder in accordance with Section 5 and the Application
related to such Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Replacement Bank": a bank or financial institution that assumes certain
Commitments and obligations and purchases certain Loans and rights pursuant
to subsection 7.7(b) or 12.1(e).
"Reportable Event": any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived
under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. S 2615.
"Required Banks": at any time, Banks the Commitment Percentages of which
aggregate more than 50%.
"Requirement of Law": as to any Person, the Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive officer, the
chairman of the board, the president, the chief financial officer, the chief
accounting officer, any executive or senior vice president or the treasurer
of such Person.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially in the form of
Exhibit B, executed and delivered pursuant to subsection 14.1.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Specified Borrower": the collective reference to the Company and the
Subsidiary Borrowers.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Subsidiary Borrower": the collective reference to the Foreign Subsidiary
Borrowers and the Domestic Subsidiary Borrowers.
"Subsidiary Guarantee": each of (a) the Initial Subsidiary Guarantee and (b)
each other Subsidiary Guarantee, substantially in the form of the Initial
Subsidiary Guarantee with such changes as shall be approved by the
Administrative Agent, to be executed and delivered from time to time by any
other Domestic Subsidiary pursuant to subsection 10.9, in each case, as the
same may be amended, supplemented or otherwise modified from time to time.
"Swing Line Bank": in respect of any Specified Borrower and any Currency,
each Bank listed as a Swing Line Bank in respect of such Specified Borrower
and Currency in Schedule III.
"Swing Line Currency": in respect of any Specified Borrower, the Currency
set forth for such Specified Borrower in Schedule III.
"Swing Line Limit": in respect of any Specified Borrower, the amount listed
as the Swing Line Limit in respect of such Specified Borrower in Schedule
III, but not in any case for all Specified Borrowers to exceed a Dollar
Equivalent Amount equal to $150,000,000.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line Currency for each Swing
Line Bank, the interest rate agreed from time to time between the Company and
such Swing Line Bank.
"Target Operating Day": any day that is not (a) a Saturday or Sunday, (b)
Christmas Day or New Year's Day or (c) any other day on which the Trans-
European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative
Agent).
"Termination Date": February 22, 2004.
"364-Day Credit Agreement": the Amended and Restated 364-Day Credit
Agreement, dated as of February 22, 2001, as amended, among the Company, the
other borrowers named therein, Chase, as administrative agent, and others.
"Total Assets": at a particular date, the assets of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Tranche": the collective reference to Committed Rate Eurocurrency Loans in
any Currency the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 14.6(f).
"Type": in respect of any Loan, its character as a Committed Rate Loan,
Competitive Advance Loan or Swing Line Loan, as the case may be.
"UCC": the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.
"Undrawn Commitment": as to any Bank at any time, the amount of such Bank's
Commitment minus the amount of such Bank's Committed Exposure at such time
but not less than zero.
"Uniform Customs": the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500 as the
same may be amended from time to time.
1.2 Other Definitional Provisions
Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms relating to the Company and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The phrases "to the knowledge of the Company" and "of which
any Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Company or any such Subsidiary, as the case may be.
1.3 Accounting Determinations. Unless otherwise specified herein,
all accounting determinations for purposes of calculating or determining
compliance with the terms found in subsection 1.1 or the standards and
covenants found in subsection 11.1 and otherwise to be made under this
Agreement shall be made in accordance with GAAP applied on a basis consistent
in all material respects with that used in preparing the financial statements
referred to in subsection 8.1. If GAAP shall change from the basis used in
preparing such financial statements, the certificates required to be
delivered pursuant to subsection 10.2 demonstrating compliance with the
covenants contained herein shall set forth calculations setting forth the
adjustments necessary to demonstrate how the Company is in compliance with
the financial covenants based upon GAAP as in effect on the Closing Date.
SECTION 2. THE COMMITTED RATE LOANS
2.1 Committed Rate Loans
. Subject to the terms and conditions hereof, each Bank severally
agrees to make loans on a revolving credit basis ("Committed Rate Loans") to
any Specified Borrower from time to time during the Commitment Period;
provided, that no Committed Rate Loan shall be made if, after giving effect
to the making of such Loan and the simultaneous application of the proceeds
thereof, (i) the aggregate amount of the Exposure of all the Banks would
exceed the aggregate amount of the Commitments, (ii) the aggregate amount of
the Foreign Currency Exposure in respect of any Currency would exceed the
Foreign Currency Exposure Sublimit for such Currency or (iii) in the case of
Committed Rate Loans denominated in an Available Foreign Currency, the
aggregate principal amount of Committed Rate Loans outstanding to any Bank in
such Currency would exceed the Foreign Currency Commitment of such Bank in
such Currency. During the Commitment Period, the Specified Borrowers may use
the Commitments by borrowing, prepaying the Committed Rate Loans in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Committed Rate Loans may be made in Dollars or any
Available Foreign Currency and may from time to time be (i) Committed Rate
Eurocurrency Loans, (ii) in the case of Committed Rate Loans in Dollars only,
Committed Rate ABR Loans or (iii) a combination thereof, as determined by the
relevant Specified Borrower and set forth in the Notice of Borrowing or
Notice of Conversion with respect thereto; provided, that no Committed Rate
Eurocurrency Loan shall be made after the day that is one month prior to the
Termination Date.
2.2 Procedure for Committed Rate Loan Borrowing. Any Specified
Borrower may request the Banks to make Committed Rate Loans on any Business
Day during the Commitment Period by delivering a Notice of Borrowing. Each
borrowing of Committed Rate Loans (other than pursuant to a Swing Line
refunding pursuant to subsection 4.4, pursuant to subsection 5.5(c) or
pursuant to subsection 6.3) shall be in an amount equal to (a) in the case of
ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or,
if the then aggregate undrawn amount of the Commitments is less than
$1,000,000, such lesser amount) and (b) in the case of Eurocurrency Loans,
(i) if in Dollars, $2,000,000 or increments of $500,000 thereafter, and (ii)
if in any Available Foreign Currency, an amount in such Available Foreign
Currency of which the Dollar Equivalent Amount is at least $2,000,000. Upon
receipt of any such Notice of Borrowing from a Specified Borrower, the
Administrative Agent shall promptly notify each Bank that has a Commitment in
the relevant Currency of receipt of such Notice of Borrowing and of such
Bank's Borrowing Percentage of the Committed Rate Loans to be made pursuant
thereto. Subject to the terms and conditions hereof, each Bank that has a
Commitment in the relevant Currency will make its Borrowing Percentage of
each such borrowing available to the Administrative Agent for the account of
such Specified Borrower at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available to the
Administrative Agent in the applicable Currency. The amounts made available
by each Bank will then be made available to such Specified Borrower at the
Funding Office, in like funds as received by the Administrative Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt
. Each Specified Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Bank on the Termination Date
(or such earlier date on which the Loans become due and payable pursuant to
Section 12), the then unpaid principal amount of each Committed Rate Loan
made by such Bank to such Specified Borrower. Each Specified Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Committed Rate Loans made to such Specified Borrower from time to time
outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 2.8.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Specified Borrower to
such Bank resulting from each Committed Rate Loan of such Bank from time to
time, including the amounts of principal and interest payable and paid to
such Bank from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to subsection 14.6(d), and a subaccount therein for each Bank, in which shall
be recorded (i) the amount of each Committed Rate Loan made hereunder and
each Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Specified Borrower to each Bank under Committed Rate Loans and (iii) the
amount of any sum received by the Administrative Agent from each Specified
Borrower in respect of Committed Rate Loans, and the amount of each Bank's
share thereof.
(d) The entries made in the Register and the accounts of each Bank
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Specified Borrower therein recorded; provided, however,
that the failure of any Bank or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of each Specified Borrower to repay (with applicable
interest) the Committed Rate Loans made to such Specified Borrower by such
Bank in accordance with the terms of this Agreement.
2.4 Termination or Reduction of Commitments. The Company shall have
the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Commitments then in effect; provided that the Commitments may
not be optionally reduced at any time to an amount which is less than the
amount of the Exposure of all the Banks at such time; and provided further
that the Commitments may not be reduced to an amount which is less than
$50,000,000 unless they are terminated in full.
2.5 Optional Prepayments. By giving a Notice of Prepayment, any
Specified Borrower may, at any time and from time to time, prepay the
Committed Rate Loans made to such Specified Borrower, in whole or in part,
without premium or penalty (except as provided in subsection 7.8). Upon
receipt of any such notice the Administrative Agent shall promptly notify
each relevant Bank thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to subsection 7.8.
Partial prepayments shall be in an aggregate principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof or an aggregate principal
Dollar Equivalent Amount of at least $1,000,000 for Loans denominated in a
Foreign Currency.
2.6 Conversion and Continuation Options
. By giving a Notice of Conversion, any Specified Borrower may elect
from time to time (i) to convert such Specified Borrower's Eurocurrency Loans
in Dollars to ABR Loans or (ii) to convert such Specified Borrower's ABR
Loans to Eurocurrency Loans in Dollars. Upon receipt of any Notice of
Conversion the Administrative Agent shall promptly notify each relevant Bank
thereof. All or any part of Eurocurrency Loans outstanding in Dollars or ABR
Loans may be converted as provided herein, provided that (i) no ABR Loan may
be converted into a Eurocurrency Loan when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Banks have
determined that such a conversion is not appropriate and (ii) no ABR Loan may
be converted into a Eurocurrency Loan after the date that is one month prior
to the Termination Date.
(b) By giving a Notice of Continuation, any Specified Borrower may
continue any of such Specified Borrower's Eurocurrency Loans as Eurocurrency
Loans in the same Currency for additional Interest Periods.
(c) Any Specified Borrower may convert Committed Rate Loans
outstanding in Dollars or one Available Foreign Currency to Committed Rate
Loans in Dollars or a different Currency by repaying such Loans in the first
Currency and borrowing Loans of such different Currency in accordance with
the applicable provisions of this Agreement.
(d) If any Specified Borrower shall fail to timely give a Notice
of Continuation or a Notice of Conversion in respect of any of such Specified
Borrower's Eurocurrency Loans with respect to which an Interest Period is
expiring, such Specified Borrower shall be deemed to have given a Notice of
Continuation for an Interest Period of one month.
2.7 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Committed Rate Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of the Committed
Rate Loans comprising (i) each Tranche in Dollars shall be not less than
$2,000,000 and (ii) each Tranche in any Available Foreign Currency shall be
not less than the Dollar Equivalent Amount in such Currency of $2,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate Loans.
. Each Committed Rate Eurocurrency Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum
equal to the Eurocurrency Rate for such Interest Period plus the Applicable
Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a rate per
annum equal to the ABR.
(c) If all or a portion of (i) the principal amount of any
Committed Rate Loan or (ii) any interest payable thereon shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum which is (x) in the
case of overdue principal, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection plus 2% or
(y) in the case of overdue interest, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable in arrears
on each Interest Payment Date; provided, that interest accruing pursuant to
paragraph (c) of this subsection shall be payable from time to time on
demand.
2.9 Inability to Determine Interest Rate. If on or prior to the date
on which the Eurocurrency Rate is determined for any Interest Period in
respect of any Eurocurrency Loan in any Currency:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that, by reason of
circumstances affecting the relevant market generally, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for such
affected Currency or such affected Interest Period, or (b) the
Administrative Agent shall have received notice from Banks having
Commitments comprising at least 25% of the aggregate amount of the
Commitments (or, in the case of Loans denominated in an Available Foreign
Currency, Banks having at least 25% of the Foreign Currency Commitments in
such Available Foreign Currency) that the Eurocurrency Rate determined or to
be determined for such affected Interest Period will not adequately and
fairly reflect the cost to such Banks (as conclusively certified by such
Banks) of making or maintaining their affected Committed Rate Loans during
such affected Interest Period, the Administrative Agent shall give telecopy
or telephonic notice thereof to the Company and the Banks as soon as
practicable thereafter. If such notice is given (x) any Eurocurrency Loans
requested to be made in such affected Currency on the first day of such
affected Interest Period shall be made as ABR Loans in Dollars in the Dollar
Equivalent Amount, (y) any Committed Rate Loans that were to have been
converted on the first day of such affected Interest Period from ABR Loans to
Eurocurrency Loans shall be continued as ABR Loans and (z) any Eurocurrency
Loans in such affected Currency that were to have been continued as such
shall be converted, on the first day of such Interest Period, to ABR Loans in
Dollars in the Dollar Equivalent Amount. Until such notice has been
withdrawn by the Administrative Agent, no further Eurocurrency Loans in such
affected Currency shall be made, converted to or continued as such.
2.10 Commitment Increases
. At any time after the Closing Date, provided that no Event of
Default shall have occurred and be continuing, the Borrowers may request an
increase of the aggregate Commitments by notice to the Administrative Agent
in writing of the amount (the "Offered Increase Amount") of such proposed
increase (such notice, a "Commitment Increase Notice"). Any such Commitment
Increase Notice must offer each Bank the opportunity to subscribe for its pro
rata share of the increased Commitments; provided, however, the Borrowers
may, with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), without offering to each Bank the
opportunity to subscribe for its pro rata share of the increased Commitments,
offer to any bank or other financial institution that is not an existing Bank
the opportunity to provide a new Commitment pursuant to paragraph (b) below.
If any portion of the increased Commitments offered to the Banks as
contemplated in the immediately preceding sentence is not subscribed for by
the Banks, the Borrowers may, with the consent of the Administrative Agent as
to any bank or financial institution that is not at such time a Bank (which
consent shall not be unreasonably withheld or delayed), offer to any existing
Bank or to one or more additional banks or financial institutions the
opportunity to provide all or a portion of such unsubscribed portion of the
increased Commitments pursuant to paragraph (b) below.
(b) Any additional bank or financial institution that the
Borrowers select to offer the opportunity to provide any portion of the
increased Commitments, and that elects to become a party to this Agreement
and provide a Commitment, shall execute a New Bank Supplement with the
Borrowers and the Administrative Agent, substantially in the form of Exhibit
K (a "New Bank Supplement"), whereupon such bank or financial institution (a
"New Bank") shall become a Bank for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement, and Schedule I shall be deemed to be amended to add the
name and Commitment of such New Bank, provided that the Commitment of any
such New Bank shall be in a principal amount not less than $10,000,000.
(c) Any Bank that accepts an offer to it by the Borrowers to
increase its Commitment pursuant to this subsection 2.10 shall, in each case,
execute a Commitment Increase Supplement with the Borrowers and the
Administrative Agent, substantially in the form of Exhibit L (a "Commitment
Increase Supplement"), whereupon such Bank (an "Increasing Bank") shall be
bound by and entitled to the benefits of this Agreement with respect to the
full amount of its Commitment as so increased, and Schedule I shall be deemed
to be amended to so increase the Commitment of such Bank.
(d) The effectiveness of any New Bank Supplement or Commitment
Increase Supplement shall be contingent upon receipt by the Administrative
Agent of such corporate resolutions of the Borrowers and legal opinions of
counsel to the Borrowers as the Administrative Agent shall reasonably request
with respect thereto.
(e) (i) Except as otherwise provided in subparagraphs (ii) and
(iii) of this paragraph (e), if any bank or financial institution becomes a
New Bank pursuant to subsection 2.10(b) or any Bank's Commitment is increased
pursuant to subsection 2.10(c), additional Committed Rate Loans made on or
after the date of the effectiveness thereof (the "Re-Allocation Date") shall
be made in accordance with the pro rata provisions of subsection 5.3 based on
the Commitment Percentages (or relevant Foreign Currency Commitment
Percentages, as the case may be) in effect on and after such Re-Allocation
Date (except to the extent that any such pro rata borrowings would result in
any Bank making an aggregate principal amount of Committed Rate Loans in
excess of its Commitment (or relevant Foreign Currency Commitment, as the
case may be), in which case such excess amount will be allocated to, and made
by, the relevant New Banks and Increasing Banks to the extent of, and in
accordance with the pro rata provisions of subsection 5.3 based on, their
respective Commitments (or relevant Foreign Currency Commitments, as the case
may be)). On each Re-Allocation Date, the Administrative Agent shall deliver
a notice to each Bank of the adjusted Commitment Percentages after giving
effect to any increase in the aggregate Commitments made pursuant to this
subsection 2.10 on such Re-Allocation Date.
(ii) In the event that on any such Re-Allocation Date there is
an unpaid principal amount of ABR Loans, the applicable Borrower shall make
prepayments thereof and one or more Borrowers shall make borrowings of ABR
Loans and/or Eurocurrency Loans, as the applicable Borrower shall determine,
so that, after giving effect thereto, the ABR Loans and Eurocurrency Loans
outstanding are held as nearly as may be in accordance with the pro rata
provisions of subsection 5.3 based on such new Commitment Percentages.
(iii) In the event that on any such Re-Allocation Date there is
an unpaid principal amount of Eurocurrency Loans, such Eurocurrency Loans
shall remain outstanding with the respective holders thereof until the
expiration of their respective Interest Periods (unless the applicable
Borrower elects to prepay any thereof in accordance with the applicable
provisions of this Agreement), and on the last day of the respective Interest
Periods the applicable Borrower shall make prepayments thereof and the
applicable Borrowers shall make borrowings of ABR Loans and/or Eurocurrency
Loans so that, after giving effect thereto, the ABR Loans and Eurocurrency
Loans outstanding are held by all of the Banks as nearly as may be in
accordance with the pro rata provisions of subsection 5.3 based on such new
Commitment Percentages.
(f) Notwithstanding anything to the contrary in this subsection 2.10,
(i) in no event shall any transaction effected pursuant to this subsection
2.10 cause the Aggregate Commitments to exceed $1,500,000,000 and (ii) no
Bank shall have any obligation to increase its Commitment unless it agrees to
do so in its sole discretion.
2.11 Refunding of Committed Rate Loans Denominated in Available Foreign
Currencies. Notwithstanding noncompliance with the conditions precedent set
forth in subsection 9.2, if any Committed Rate Loans denominated in any
Available Foreign Currency (any such Loans, "Specified Loans") are
outstanding on (i) any date on which an Event of Default pursuant to Section
12(g) shall have occurred with respect to the Company or (ii) any
Acceleration Date, then, at 10:00 A.M., New York City time, on the second
Business Day immediately succeeding (x) the date on which such Event of
Default occurs (in the case of clause (i) above) or (y) such Acceleration
Date (in the case of clause (ii) above), the Administrative Agent shall be
deemed to have received a notice from the Company pursuant to subsection 2.2
requesting that ABR Loans be made pursuant to subsection 2.1 on such second
Business Day in an aggregate amount equal to the Dollar Equivalent Amount of
the aggregate amount of all Specified Loans, and the procedures set forth in
subsection 2.2 shall be followed in making such ABR Loans. The proceeds of
such ABR Loans shall be applied to repay such Specified Loans.
(b) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 2.11 to repay Specified Loans as required by
such paragraph, effective on the date such ABR Loans would otherwise have
been made, (i) the principal amount of each relevant Specified Loan shall be
converted into Dollars (calculated on the basis of the Exchange Rate as of
the immediately preceding Business Day) ("Converted Specified Loans") and
(ii) each Bank severally, unconditionally and irrevocably agrees that it
shall purchase in Dollars a participating interest in such Converted
Specified Loans in an amount equal to the amount of ABR Loans which would
otherwise have been made by such Bank pursuant to paragraph (a) of this
subsection 2.11. Each Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and
the proceeds of such participation shall be distributed by the Administrative
Agent to each Bank having such Specified Loans in such amount as will reduce
the amount of the participating interest retained by such Bank in the
Converted Specified Loans to the amount of the ABR Loans which were to have
been made by it pursuant to paragraph (a) of this subsection 2.11. All
Converted Specified Loans shall bear interest at the rate which would
otherwise be applicable to ABR Loans. Each Bank shall share on a pro rata
basis (calculated by reference to its participating interest in such
Converted Specified Loans) in any interest which accrues thereon and in all
repayments thereof.
(c) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 2.11 to repay Specified Loans as required by
such paragraph and the principal amount of any Specified Loans may not be
converted into Dollars in the manner contemplated by paragraph (b) of this
subsection 2.11, (i) the Administrative Agent shall determine the Dollar
Equivalent Amount of such Specified Loans (calculated on the basis of the
Exchange Rate determined as of the Business Day immediately preceding the
date on which ABR Loans would otherwise have been made pursuant to said
paragraph (a)) and (ii) effective on the date on which ABR Loans would
otherwise have been made pursuant to said paragraph (a), each Bank severally,
unconditionally and irrevocably agrees that it shall purchase in Dollars a
participating interest in such Specified Loans in an amount equal to the
amount of ABR Loans which would otherwise have been made by such Bank
pursuant to paragraph (a) of this subsection 2.11. Each Bank will
immediately transfer to the Administrative Agent, in immediately available
funds, the amount of its participation, and the proceeds of such
participation shall be distributed by the Administrative Agent to each
relevant Bank having Specified Loans in such amount as will reduce the Dollar
Equivalent Amount as of such date of the amount of the participating interest
retained by such Bank in such Specified Loans to the amount of the ABR Loans
which were to have been made by it pursuant to paragraph (a) of this
subsection 2.11. Each Bank shall share on a pro rata basis (calculated by
reference to its participating interest in such Specified Loans) in any
interest which accrues thereon, in all repayments of principal thereof and in
the benefits of any collateral furnished in respect thereof and the proceeds
of such collateral.
(d) If any amount required to be paid by any Bank to any other
Bank pursuant to this subsection 2.11 in respect of any Specified Loan is not
paid to such Bank on the date such payment is due from such Bank, such
obligor Bank shall pay to such obligee Bank on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal funds rate,
as quoted by such obligee Bank during the period from and including the date
such payment is required to the date on which such payment is immediately
available to such obligee Bank, times (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. A certificate of an obligee Bank submitted to any obligor Bank
through the Administrative Agent with respect to any amounts owing under this
subsection (d) shall be conclusive in the absence of manifest error.
2.12 Certain Borrowings of Committed Rate Loans and Refunding of Loans
(a) . (a) If on any Borrowing Date on which a Specified Borrower has
requested the Banks (the "Specified Foreign Currency Banks") to make
Committed Rate Loans denominated in an Available Foreign Currency (the
"Requested Specified Loans") (i) the principal amount of the Requested
Specified Loans to be made by any Specified Foreign Currency Bank exceeds the
unused amount of the Commitment of such Specified Foreign Currency Bank in
the requested Available Foreign Currency (before giving effect to the making
and payment of any Loans required to be made pursuant to this subsection 2.12
on such Borrowing Date) , (ii) the principal amount of such Requested
Specified Loan, when added to the outstanding principal amount of all other
Committed Rate Loans of such Specified Foreign Currency Banks denominated in
the Available Foreign Currency in which the Requested Specified Loans are to
be made, does not exceed the aggregate amount of such Specified Foreign
Currency Banks' Foreign Currency Commitments in such requested Available
Foreign Currency and (iii) the Dollar Equivalent of the amount of the excess
described in the foregoing clause (i) is less than or equal to the aggregate
unused amount of the Commitments of all Banks other than such Specified
Foreign Currency Banks (before giving effect to the making and payment of any
Loans pursuant to this subsection 2.12 on such Borrowing Date), each Bank
other than such Specified Foreign Currency Banks shall make a Committed Rate
Loan denominated in Dollars to the Company (or any Specified Borrower
identified by the Company) on such Borrowing Date, and the proceeds of such
Committed Rate Loans shall be simultaneously applied to repay outstanding
Committed Rate Loans denominated in Dollars of such Specified Foreign
Currency Banks in each case in amounts such that, after giving effect to (1)
such borrowings and repayments and (2) the borrowing from such Specified
Foreign Currency Banks of the Requested Specified Loans, the excess described
in the foregoing clause (i) will be eliminated. To effect such borrowings
and repayments, (x) not later than 12:00 Noon, New York City time, on such
Borrowing Date, the proceeds of such Committed Rate Loans denominated in
Dollars shall be made available by each Bank other than such Specified
Foreign Currency Banks to the Administrative Agent at its office specified in
subsection 14.2 in Dollars and in immediately available funds and the
Administrative Agent shall apply the proceeds of such Committed Rate Loans
denominated in Dollars toward repayment of outstanding Committed Rate Loans
denominated in Dollars of such Specified Foreign Currency Banks (as directed
by the Company) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) such Specified Foreign Currency Banks shall, in
accordance with the applicable provisions hereof, make the Requested
Specified Loans in an aggregate amount equal to the amount so requested by
the relevant Specified Borrower and (II) the relevant Borrower shall pay to
the Administrative Agent for the account of the Specified Foreign Currency
Banks whose Loans to such Borrower are repaid on such Borrowing Date pursuant
to this subsection 2.12 all interest accrued on the amounts repaid to the
date of repayment, together with any amounts payable pursuant to subsection
7.8 in connection with such repayment, provided that the Administrative Agent
shall have provided notice to the Company prior to the making of such
Requested Specified Loans that the making thereof would obligate the Company
to pay amounts pursuant to subsection 7.8.
(b) If any borrowing of Committed Rate Loans is required pursuant
to this subsection 2.12, the Company shall notify the Administrative Agent in
the manner provided for Committed Rate Loans in subsection 2.3, except that
the minimum borrowing amounts and threshold multiples in excess thereof
applicable to ABR Loans set forth in subsection 2.3 shall not be applicable
to the extent that such minimum borrowing amounts exceed the amounts of
Committed Rate Loans required to be made pursuant to this subsection 2.12.
SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1 Competitive Advance Loans.
Subject to the terms and conditions hereof, any Specified Borrower
may, from time to time during the Commitment Period, request the Banks to
offer bids, and any Bank may, in its sole discretion, offer such bids, to
make competitive advance loans ("Competitive Advance Loans") to such
Specified Borrower on the terms and conditions set forth in such bids. Each
Competitive Advance Loan shall bear interest at the rates, be payable on the
dates, and shall mature on the date, agreed between such Specified Borrower
and Bank at the time such Competitive Advance Loan is made; provided, that
(i) each Competitive Advance Loan shall mature not earlier than 1 day and not
later than 180 days, after the date such Competitive Advance Loan is made and
(ii) no Competitive Advance Loan shall mature after the Termination Date.
During the Commitment Period, the Specified Borrowers may accept bids from
Banks from time to time for Competitive Advance Loans, and borrow and repay
Competitive Advance Loans, all in accordance with the terms and conditions
hereof; provided, that no Competitive Advance Loan shall be made if, after
giving effect to the making of such Loan and the simultaneous application of
the proceeds thereof, (i) the aggregate amount of the Exposure of all the
Banks would exceed the aggregate amount of the Commitments, or (ii) the
aggregate amount of the Foreign Currency Exposure in respect of any Currency
would exceed the Foreign Currency Exposure Sublimit for such Currency.
Subject to the foregoing, any Bank may, in its sole discretion, make
Competitive Advance Loans in an aggregate outstanding amount exceeding the
amount of such Bank's Commitment.
(b) The Competitive Advance Loans may be made in Dollars or any
Available Foreign Currency, as agreed between the Specified Borrower and Bank
in respect thereof at the time such Competitive Advance Loan is made.
3.2 Procedure for Competitive Advance Loan Borrowing. Any Specified
Borrower may request Competitive Advance Loans by delivering a Competitive
Advance Loan Request. The Administrative Agent shall notify each Bank
promptly by facsimile transmission of the contents of each Competitive
Advance Loan Request received by the Administrative Agent. Each Bank may
elect, in its sole discretion, to offer irrevocably to make one or more
Competitive Advance Loans to the Specified Borrower by delivering a
Competitive Advance Loan Offer to the Administrative Agent.
(b) Before the acceptance time set forth in the applicable
Competitive Advance Loan Request, the Specified Borrower, in its absolute
discretion, shall:
(i) cancel such Competitive Advance Loan Request by giving
the Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
immediately confirmed in writing or by facsimile transmission, subject to the
provisions of subsection 3.2(c), accept one or more of the offers made by any
Bank or Banks pursuant to subsection 3.2(a) of the amount of Competitive
Advance Loans for each relevant maturity date and reject any remaining offers
made by Banks pursuant to subsection 3.2(a).
(c) The Specified Borrower's acceptance of Competitive Advance
Loans in response to any Competitive Advance Loan Request shall be subject to
the following limitations:
(i) The amount of Competitive Advance Loans accepted for each
maturity date specified by any Bank in its Competitive Advance Loan Offer
shall not exceed the maximum amount for such maturity date specified in such
Competitive Advance Loan Offer;
(ii) the aggregate amount of Competitive Advance Loans
accepted for all maturity dates specified by any Bank in its Competitive
Advance Loan Offer shall not exceed the aggregate maximum amount specified in
such Competitive Advance Loan Offer for all such maturity dates;
(iii) the Specified Borrower may not accept offers for
Competitive Advance Loans for any maturity date in an aggregate principal
amount in excess of the maximum principal amount requested in the related
Competitive Advance Loan Request; and
(iv) if the Specified Borrower accepts any of such offers, it
must accept offers based solely upon pricing for such relevant maturity date
and upon no other criteria whatsoever and if two or more Banks submit offers
for any maturity date at identical pricing and the Specified Borrower accepts
any of such offers but does not wish to (or by reason of the limitations set
forth in subsection 3.2(c)(iii) cannot) borrow the total amount offered by
such Banks with such identical pricing, the Administrative Agent shall
allocate offers from all of such Banks in amounts among them pro rata
according to the amounts offered by such Banks (or as nearly pro rata as
shall be practicable).
(d) If the Specified Borrower notifies the Administrative Agent
that a Competitive Advance Loan Request is cancelled, the Administrative
Agent shall give prompt telephone notice thereof to the Banks.
(e) If the Specified Borrower accepts one or more of the offers
made by any Bank or Banks, the Administrative Agent promptly shall notify
each Bank which has made such a Competitive Advance Loan Offer of (i) the
aggregate amount of such Competitive Advance Loans to be made for each
maturity date and (ii) the acceptance or rejection of any offers to make such
Competitive Advance Loans made by such Bank. Before the Funding Time for the
applicable Currency, each Bank whose Competitive Advance Loan Offer has been
accepted shall make available to the Administrative Agent for the account of
the Specified Borrower at the Funding Office for the applicable Currency the
amount of Competitive Advance Loans in the applicable Currency to be made by
such Bank, in immediately available funds.
3.3 Repayment of Competitive Advance Loans; Evidence of Debt. Each
Specified Borrower that borrows any Competitive Advance Loan hereby
unconditionally promises to pay to the Bank that made such Competitive
Advance Loan on the maturity date, as agreed by such Specified Borrower and
Bank (or such earlier date on which all the Loans become due and payable
pursuant to Section 12), the then unpaid principal amount of such Competitive
Advance Loan. Each Specified Borrower hereby further agrees to pay interest
on the unpaid principal amount of the Competitive Advance Loans made by any
Bank to such Specified Borrower from time to time outstanding from the date
thereof until payment in full thereof at the rate per annum, and on the
dates, agreed by such Specified Borrower and Bank at the time such
Competitive Advance Loan is made. All payments in respect of Competitive
Advance Loans shall be made by such Specified Borrower to the Administrative
Agent for the account of the Bank that makes such Competitive Advance Loan to
the Payment Office and by the Payment Time for the applicable Currency.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Specified Borrower to
such Bank resulting from each Competitive Advance Loan of such Bank from time
to time, including the amounts of principal and interest payable and paid to
such Bank from time to time in respect of Competitive Advance Loans. The
entries made in the accounts of each Bank maintained pursuant to this
subsection 3.3(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of each
Specified Borrower therein recorded, absent manifest error; provided,
however, that the failure of any Bank to maintain any such account, or any
error therein, shall not in any manner affect the obligation of each
Specified Borrower to repay (with applicable interest) the Competitive
Advance Loans made to such Specified Borrower by such Bank in accordance with
the terms of this Agreement.
3.4 Prepayments. Unless otherwise agreed by the Bank making a
Competitive Advance Loan, upon giving a Notice of Prepayment at the address
and time specified in Schedule IV may be optionally prepaid prior to the
scheduled maturity date thereof.
SECTION 4. THE SWING LINE LOANS
4.1 Swing Line Loans. Subject to the terms and conditions hereof, each
Specified Borrower may borrow from such Specified Borrower's Swing Line Bank
swing line loans ("Swing Line Loans") from time to time during the Commitment
Period in a Swing Line Currency of such Specified Borrower; provided, that no
Swing Line Loan shall be made if, after giving effect to the making of such
Loan and the simultaneous application of the proceeds thereof, (i) the
aggregate amount of the Exposure of all the Banks would exceed the aggregate
amount of the Commitments, (ii) the aggregate amount of the Foreign Currency
Exposure in respect of any Currency would exceed the Foreign Currency
Exposure Sublimit for such Currency, or (iii) the aggregate Dollar Equivalent
Amount of all outstanding Swing Line Loans of such Specified Borrower would
exceed the Swing Line Limit for such Specified Borrower or the Dollar
Equivalent Amount of all outstanding Swing Line Loans would exceed
$150,000,000. During the Commitment Period, the Specified Borrowers may
borrow and prepay the Swing Line Loans, in whole or in part, all in
accordance with the terms and conditions hereof.
4.2 Procedure for Swing Line Borrowing. Any Specified Borrower may
borrow Swing Line Loans during the Commitment Period on any Business Day by
giving a Notice of Swing Line Borrowing in respect of such Swing Line Loan.
Subject to the terms and conditions hereof, on the Borrowing Date of each
Swing Line Loan, the relevant Swing Line Bank shall make the proceeds thereof
available to the relevant Specified Borrower in immediately available funds
in the applicable Currency in the manner from time to time agreed by such
Specified Borrower and such Swing Line Bank.
(b) Upon request of the Administrative Agent and on the last
Business Day of each month on which a Swing Line Bank has any outstanding
Swing Line Loans, such Bank shall deliver to the Administrative Agent a
Notice of Swing Line Outstandings. The Administrative Agent will, at the
request of any Swing Line Bank, advise such Swing Line Bank of the Exchange
Rate used by the Administrative Agent in calculating the Dollar Equivalent
Amount of Swing Line Loans of such Swing Line Bank on any date.
4.3 Repayment of Swing Line Loans; Evidence of Debt. Each Specified
Borrower hereby unconditionally promises to pay to its Swing Line Bank on the
Termination Date (or such earlier date on which such Swing Line Loans become
due and payable pursuant to subsection 4.4 or on which all the Loans become
due and payable pursuant to Section 12), the then unpaid principal amount of
all Swing Line Loans made to such Specified Borrower. Each Specified
Borrower hereby further agrees to pay interest on the unpaid principal amount
of all Swing Line Loans made to such Specified Borrower from time to time
outstanding from the date thereof until payment in full thereof at the Swing
Line Rate for the Currency of such Swing Line Loan, payable on the last
Business Day of each calendar month on which such Swing Line Loans are
outstanding. All payments in respect of Swing Line Loans shall be made by
such Specified Borrower to its Swing Line Bank at the address set forth in
Schedule III for such Swing Line Bank and Swing Line Loans in such Currency.
(b) Each Swing Line Bank shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each
Specified Borrower to such Swing Line Bank resulting from each Swing Line
Loan of such Bank from time to time, including the amounts of principal and
interest payable and paid to such Swing Line Bank from time to time under
this Agreement. The entries made in the accounts of each Swing Line Bank
maintained pursuant to this subsection 4.3(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of
the obligations of each Specified Borrower therein recorded; provided,
however, that the failure of any Swing Line Bank to maintain any such
account, or any error therein, shall not in any manner affect the obligation
of each Specified Borrower to repay (with applicable interest) the Swing Line
Loans made to such Specified Borrower by such Swing Line Bank in accordance
with the terms of this Agreement.
4.4 Allocating Swing Line Loans; Swing Line Loan Participations. If
any Event of Default shall occur and be continuing, any Swing Line Bank may,
in its sole and absolute discretion, direct that the Swing Line Loans owing
to it be refunded, by delivering a Notice of Swing Line Refunding. Upon
receipt of a Notice of Swing Line Refunding the Administrative Agent shall
promptly give notice of the contents thereof to the Banks and, unless an
Event of Default described in Section 12(g) in respect of the Company or the
relevant Specified Borrower has occurred, to the Company and the relevant
Specified Borrower. Each such Notice of Swing Line Refunding shall be deemed
to constitute delivery by such Specified Borrower of a Notice of Borrowing of
Committed Rate Eurocurrency Loans in the amount and Currency of the Swing
Line Loans to which it relates, for an Interest Period of one month's
duration. Subject to the terms and conditions hereof, each Bank (including
each Swing Line Bank in its capacity as a Bank having a Commitment) hereby
agrees to make a Committed Rate Loan to such Specified Borrower pursuant to
Section 2 in an amount equal to such Bank's Borrowing Percentage of the
aggregate amount of the Swing Line Loans to which such Notice of Swing Line
Refunding relates. Unless any of the events described in Section 12(g) in
respect of the Company or such Specified Borrower shall have occurred (in
which case the procedures of subsection 4.4(b) shall apply), each Bank shall
make the amount of such Committed Rate Loan available to the Administrative
Agent at the Funding Office, and at or prior to the Funding Time, for the
Currency of such Loan in funds immediately available to the Administrative
Agent. The proceeds of such Committed Rate Loans shall be immediately made
available to such Swing Line Bank by the Administrative Agent and applied by
such Swing Line Bank to repay the Swing Line Loans to which such Notice of
Swing Line Refunding related.
(b) If prior to the time a Committed Rate Loan would have
otherwise been made pursuant to subsection 4.4(a), one of the events
described in Section 12(g) shall have occurred in respect of the Company or
the relevant Specified Borrower, each Bank (other than the relevant Swing
Line Bank) shall, on the date such Committed Rate Loan would have been made
pursuant to the Notice of Swing Line Refunding referred to in subsection
4.4(a) (the "Refunding Date"), purchase an undivided participating interest
in the outstanding Swing Line Loans to which such Notice of Swing Line
Refunding related, in an amount equal to (i) such Bank's Commitment
Percentage times (ii) the aggregate principal amount of such Swing Line Loans
then outstanding which were to have been repaid with Committed Rate Loans
(the "Swing Line Participation Amount"). On the Refunding Date, (x) each
Bank shall transfer to such Swing Line Bank, in immediately available funds,
such Bank's Swing Line Participation Amount, and upon receipt thereof such
Swing Line Bank shall, if requested by any Bank, deliver to such Bank a
participation certificate dated the date of such Swing Line Bank's receipt of
such funds and evidencing such Bank's ownership of its Swing Line
Participation Amount and (y) the interest rate on the applicable Swing Line
Loan will automatically be converted to the applicable Eurocurrency Rate with
an Interest Period of one month plus the Applicable Margin. If any amount
required to be paid by any Bank to any Swing Line Bank pursuant to this
subsection 4.4 in respect of any Swing Line Participation Amount is not paid
to such Swing Line Bank on the date such payment is due from such Bank, such
Bank shall pay to such Swing Line Bank on demand an amount equal to the
product of (i) such amount, times (ii) (A) in the case of any such payment
obligation denominated in Dollars, the daily average Federal funds rate, as
quoted by such Swing Line Bank, or (B) in the case of any such payment
obligation denominated in an Available Foreign Currency, the rate customary
in such Currency for settlement of similar inter-bank obligations, as quoted
by such Swing Line Bank, in each case during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Swing Line Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of a Swing Line Bank
submitted to any Bank with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Swing Line Bank has received
from any Bank such Bank's Swing Line Participation Amount, such Swing Line
Bank receives any payment on account of the related Swing Line Loans, such
Swing Line Bank will distribute to such Bank its Commitment Percentage of
such payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Bank's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by such Swing
Line Bank is required to be returned, such Bank will return to such Swing
Line Bank any portion thereof previously distributed to it by such Swing Line
Bank.
(d) Each Bank's obligation to make Committed Rate Loans pursuant
to subsection 4.4(a) and to purchase participating interests pursuant to
subsection 4.4(b) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or any Specified Borrower, or any Specified Borrower
may have against any Bank or any other Person, as the case may be, for any
reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Company or any of its Subsidiaries; (iv) any breach of this
Agreement by any party hereto; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
SECTION 5. THE LETTERS OF CREDIT
5.1 L/C Commitment. Subject to the terms and conditions hereof, each
Issuing Bank agrees to issue letters of credit for the account of any
Specified Borrower on any Business Day during the Commitment Period in such
form as shall be reasonably acceptable to such Issuing Bank; provided, that
no Letter of Credit shall be issued if, after giving effect thereto (i) the
aggregate amount of the Exposure of all the Banks would exceed the aggregate
amount of the Commitments, (ii) the aggregate amount of the Foreign Currency
Exposure in respect of any Currency would exceed the Foreign Currency
Exposure Sublimit for such Currency or (iii) the aggregate amount of the L/C
Obligations would exceed $100,000,000.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars or an Available Foreign
Currency and shall be either (A) a standby letter of credit issued to support
obligations of a Specified Borrower, contingent or otherwise, to provide
credit support for workers' compensation, other insurance programs and other
lawful corporate purposes (a "Standby Letter of Credit") or (B) a commercial
letter of credit issued in respect of the purchase of goods and services in
the ordinary course of business of the Company and its Subsidiaries (a
"Commercial Letter of Credit"; together with the Standby Letters of Credit,
the "Letters of Credit") and, (ii) expire no later than the earlier of 365
days after its date of issuance and 5 Business Days prior to the Termination
Date although any such Letter of Credit may be automatically extended for
periods of one year from the current or any future expiration date of the
Letter of Credit (unless the Issuing Bank elects not to extend such Letter of
Credit) and the extended maturity date is not beyond the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York or, if acceptable to the Required Banks and the relevant account party,
the jurisdiction of the Issuing Office at which such Letter of Credit is
issued.
(d) No Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Bank or any Bank to exceed any limits imposed by, any change
after the date hereof in any applicable Requirement of Law.
5.2 Procedure for Issuance of Letters of Credit under this Agreement.
Any Specified Borrower may from time to time request that an Issuing Bank
issue a Letter of Credit by delivering to such Issuing Bank at its Issuing
Office an Application therefor (with a copy to the Administrative Agent),
completed to the satisfaction of the Issuing Bank, and such other
certificates, documents and other papers and information as such Issuing Bank
may reasonably request. Upon receipt by an Issuing Bank of any Application,
and subject to the terms and conditions hereof, such Issuing Bank will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall any Issuing Bank be required to issue any
Letter of Credit earlier than five Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed by
such Issuing Bank and such Specified Borrower. Such Issuing Bank shall
advise the Administrative Agent of the terms of such Letter of Credit on the
date of issuance thereof and shall promptly thereafter furnish copies thereof
and each amendment thereto to the Company and through the Administrative
Agent each Bank.
5.3 Fees, Commissions and Other Charges. Each Specified Borrower for
whose account a Letter of Credit is issued hereunder shall pay to the
Administrative Agent, for the account of the Banks (including the Issuing
Bank) pro rata according to their Commitment Percentages, a letter of credit
commission with respect to each Letter of Credit, computed at a rate equal to
the then Applicable Margin for Eurocurrency Loans on the daily average
undrawn face amount of such Letter of Credit. Such commissions shall be
payable in arrears on the last Business Day of each March, June, September
and December to occur after the date of issuance of each Letter of Credit and
on the expiration date of such Letter of Credit and shall be nonrefundable.
Each Specified Borrower for whose account a Letter of Credit is issued
hereunder shall also pay to the Issuing Bank in respect of each Letter of
Credit such commission as shall be agreed from time to time by the Company
and such Issuing Bank.
(b) In addition to the foregoing fees and commissions, each
Specified Borrower for whose account a Letter of Credit is issued hereunder
shall (i) pay or reimburse the Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by such Issuing Bank in
issuing, effecting payment under, amending or otherwise administering such
Letter of Credit and (ii) pay the Issuing Bank such other fees as shall be
agreed by the Issuing Bank and such Specified Borrower.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Bank and the Banks all fees and
commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
5.4 L/C Participations. Each Issuing Bank irrevocably agrees to grant
and hereby grants to each L/C Participant, and, to induce the Issuing Bank to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from such Issuing Bank,
on the terms and conditions hereinafter stated, for such L/C Participant's
own account and risk, an undivided interest equal to such L/C Participant's
Commitment Percentage in such Issuing Bank's obligations and rights under
each Letter of Credit issued by such Issuing Bank hereunder and the amount of
each draft paid by such Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Bank that, if a
draft is paid under any Letter of Credit issued by such Issuing Bank for
which the Specified Borrower which is the account party under such Letter of
Credit has not reimbursed such Issuing Bank to the full extent required by
the terms of this Agreement, such L/C Participant shall pay to such Issuing
Bank upon demand at such Issuing Bank's Issuing Office an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
any Issuing Bank pursuant to subsection 5.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit
is not paid to such Issuing Bank on the date such payment is due from such
L/C Participant, such L/C Participant shall pay to such Issuing Bank on
demand an amount equal to the product of (i) such amount, times (ii) (A) in
the case of any such payment obligation denominated in Dollars, the daily
average Federal funds rate, as quoted by such Issuing Bank, or (B) in the
case of any such payment obligation denominated in an Available Foreign
Currency, the rate customary in such Currency for settlement of similar
inter-bank obligations, as quoted by such Issuing Bank, in each case during
the period from and including the date such payment is required to the date
on which such payment is immediately available to the Issuing Bank, times
(iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. A certificate of an
Issuing Bank submitted to any L/C Participant with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 5.4(a) the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the account party or otherwise, including by way of set-off or proceeds
of collateral applied thereto by such Issuing Bank), or any payment of
interest on account thereof, such Issuing Bank will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
that any such payment received by such Issuing Bank shall be required to be
returned by the Issuing Bank, such L/C Participant shall return to such
Issuing Bank the portion thereof previously distributed by such Issuing Bank
to it.
5.5 Reimbursement Obligation of the Specified Borrowers. Each
Specified Borrower for whose account a Letter of Credit is issued hereunder
agrees to reimburse the Issuing Bank in respect of such Letter of Credit on
each date on which such Issuing Bank notifies such Specified Borrower (with a
copy to the Administrative Agent at its address in the Administrative
Schedule for Notices of Borrowing for the applicable Currency) of the date
and amount of a draft presented under such Letter of Credit and paid by such
Issuing Bank for the amount of (i) such draft so paid and (ii) any taxes,
fees, charges or other costs or expenses incurred by such Issuing Bank in
connection with such payment; provided if any Issuing Bank shall notify the
Specified Borrower of a drawing after 2:00 p.m. local time of such Issuing
Bank's Issuing Office on the date of any drawing under a Letter of Credit,
the Specified Borrower will not be required to reimburse such Issuing Bank
until the next succeeding Business Day. Each such payment shall be made to
such Issuing Bank at its Issuing Office in the Currency in which payment of
such draft was made and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by any Specified Borrower under this subsection from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which is (i) in the case of such
amounts payable in Dollars, 2% above the ABR from time to time and (ii) in
the case of such amounts payable in any other currency, 2% above the rate
reasonably determined by the Issuing Bank as the cost of funding such overdue
amount from time to time on an overnight basis.
(c) Each notice of a drawing under any Letter of Credit
denominated in Dollars shall constitute a request by the Specified Borrower
for a borrowing pursuant to subsection 2.2 of ABR Loans in the amount of such
drawing plus any amounts payable pursuant to subsection 5.5(a)(ii) in respect
of such drawing. The Borrowing Date with respect to such borrowing shall be
the date of such drawing.
5.6 Obligations Absolute. The obligations of the Specified Borrowers
under this Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which any Specified Borrower may have or have had against the Issuing
Bank or any beneficiary of a Letter of Credit.
(b) Each Specified Borrower for whose account a Letter of Credit
is issued hereunder also agrees with the Issuing Bank in respect of such
Letter of Credit that such Issuing Bank shall not be responsible for, and
such Specified Borrower's Reimbursement Obligations under subsection 5.5(a)
shall not be affected by, among other things, (i) the validity or genuineness
of documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, provided, that reliance
upon such documents by such Issuing Bank shall not have constituted gross
negligence or wilful misconduct of such Issuing Bank or (ii) any dispute
between or among such Specified Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred
or (iii) any claims whatsoever of any Specified Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(c) No Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by such Issuing Bank's gross negligence or
willful misconduct.
(d) Each Specified Borrower for whose account a Letter of Credit
is issued hereunder agrees that any action taken or omitted by any Issuing
Bank under or in connection with any Letter of Credit or the related drafts
or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
Uniform Customs, shall be binding on such Specified Borrower and shall not
result in any liability of such Issuing Bank to such Specified Borrower.
5.7 Letter of Credit Payments. If any draft shall be presented for
payment to an Issuing Bank under any Letter of Credit, such Issuing Bank
shall promptly notify the account party of the date and amount thereof. The
responsibility of the Issuing Bank to the account party in connection with
any draft presented for payment under any Letter of Credit shall, in addition
to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
5.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 5, the provisions of this Section 5 shall apply.
SECTION 6. LOCAL CURRENCY FACILITIES
6.1 Terms of Local Currency Facilities. Subject to the provisions of
this Section 6, the Company may in its discretion from time to time designate
any Subsidiary of the Company organized under the laws of any jurisdiction
outside the United States as a "Local Currency Borrower" and any Qualified
Credit Facility to which such Local Currency Borrower and any one or more
Banks (or its affiliates, agencies or branches) is a party as a "Local
Currency Facility", with the consent of each such Bank in its sole
discretion, by delivering a Local Currency Facility Addendum to the
Administrative Agent and the Banks (through the Administrative Agent)
executed by the Company, each such Local Currency Borrower and each such
Bank, provided, that on the effective date of such designation no Event of
Default shall have occurred and be continuing. Concurrently with the
delivery of a Local Currency Facility Addendum, the Company or the relevant
Local Currency Borrower shall furnish to the Administrative Agent copies of
all documentation executed and delivered by any Local Currency Borrower in
connection therewith, together with, if applicable, an English translation
thereof. Except as otherwise provided in this Section 6 or in the definition
of "Qualified Credit Facility" in subsection 1.1, the terms and conditions of
each Local Currency Facility shall be determined by mutual agreement of the
relevant Local Currency Borrower(s) and Local Currency Bank(s). The
documentation governing each Local Currency Facility shall (i) contain an
express acknowledgement that such Local Currency Facility shall be subject to
the provisions of this Section 6 and (ii) designate a Local Currency Facility
Agent for such Local Currency Facility. Each of the Company and, by agreeing
to any Local Currency Facility designation as contemplated hereby, each
relevant Local Currency Bank (if any) party thereto which is an affiliate,
branch or agency of a Bank, acknowledges and agrees that each reference in
this Agreement to any Bank shall, to the extent applicable, be deemed to be a
reference to such Local Currency Bank. In the event of any inconsistency
between the terms of this Agreement and the terms of any Local Currency
Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Local Currency Facility shall
set forth (i) the maximum amount (expressed in Dollars) available to be
borrowed from all Local Currency Banks under such Local Currency Facility (as
the same may be reduced from time to time, a "Local Currency Facility Maximum
Borrowing Amount") and (ii) with respect to each Local Currency Bank party to
such Local Currency Facility, the maximum Dollar Equivalent Amount available
to be borrowed from such Local Currency Bank thereunder (as the same may be
reduced from time to time, a "Local Currency Bank Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no event
shall the Local Currency Banks party to a Local Currency Facility have the
right to accelerate the Local Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Local Currency Loans prior
to the earlier of the stated termination date in respect thereof or the
Termination Date, except, in each case, in connection with an acceleration of
the Loans or a termination of the Commitments pursuant to Section 12 of this
Agreement, provided, that nothing in this paragraph (c) shall be deemed to
require any Local Currency Bank to make a Local Currency Loan if the
applicable conditions precedent to the making of such Local Currency Loan set
forth in the relevant Local Currency Facility have not been satisfied. No
Local Currency Loan may be made under a Local Currency Facility if (i) after
giving effect thereto, the conditions precedent in subsection 9.2 would not
be satisfied or (ii) after giving effect to the making of such Local Currency
Loan and the simultaneous application of the proceeds thereof, (A) the
aggregate amount of the Exposure of all the Banks would exceed the aggregate
amount of the Commitments, or (B) the amount of such Local Currency Bank's
Committed Exposure would exceed the amount of such Local Currency Bank's
Commitment.
(d) The relevant Local Currency Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other
modification (including any change in commitment amounts or in the Local
Currency Banks participating in any Local Currency Facility) to the terms of
any Local Currency Facility promptly after the effectiveness thereof
(together with, if applicable, an English translation thereof). If any such
amendment, supplement or other modification to a Local Currency Facility
shall (i) add a Local Currency Bank as a Local Currency Bank thereunder or
(ii) change the Local Currency Facility Maximum Borrowing Amount or any Local
Currency Bank Maximum Borrowing Amount with respect thereto, the Company
shall promptly furnish an appropriately revised Local Currency Facility
Addendum, executed by the Company, the relevant Local Currency Borrower and
the affected Local Currency Banks (or any agent acting on their behalf), to
the Administrative Agent and the Banks (through the Administrative Agent).
(e) The Company may terminate its designation of a facility as a
Local Currency Facility, with the consent of each Local Currency Bank party
thereto in its sole discretion, by written notice to the Administrative
Agent, which notice shall be executed by the Company, the relevant Local
Currency Borrower and each Local Currency Bank party to such Local Currency
Facility (or any agent acting on their behalf). Once notice of such
termination is received by the Administrative Agent, such Local Currency
Facility and the loans and other obligations outstanding thereunder shall
immediately cease to be subject to the terms of this Agreement and shall
cease to benefit from the Company Guarantee.
6.2 Reporting of Local Currency Outstandings. On the date of the
making of any Local Currency Loan having a maturity of 30 or more days to a
Local Currency Borrower and on the last Business Day of each month on which a
Local Currency Borrower has any outstanding Local Currency Loans, the Local
Currency Facility Agent for such Local Currency Borrower, shall deliver to
the Administrative Agent a Notice of Local Currency Outstandings. The
Administrative Agent will, at the request of any Local Currency Facility
Agent, advise such Local Currency Facility Agent of the Exchange Rate used by
the Administrative Agent in calculating the Dollar Equivalent Amount of Local
Currency Loans under the related Local Currency Facility on any date.
6.3 Refunding of Local Currency Loans. Notwithstanding noncompliance
with the conditions precedent set forth in subsection 9.2, if any Local
Currency Loans are outstanding on (i) any date on which an Event of Default
pursuant to Section 12(g) shall have occurred with respect to the Company,
(ii) any Acceleration Date or (iii) any date on which an Event of Default
pursuant to Section 12(a)(ii) shall have occurred and be continuing for three
or more Business Days and, in the case of clause (iii) above, any Local
Currency Bank party to the affected Local Currency Facility shall have given
notice thereof to the Administrative Agent requesting that the Local
Currency Loans ("Affected Local Currency Loans") outstanding thereunder be
refunded pursuant to this subsection 6.3, then, at 10:00 A.M., New York City
time, on the second Business Day immediately succeeding (x) the date on which
such Event of Default occurs (in the case of clause (i) above), (y) such
Acceleration Date (in the case of clause (ii) above) or (z) the date on which
such notice is received by the Administrative Agent (in the case of clause
(iii) above), the Administrative Agent shall be deemed to have received a
notice from the Company pursuant to subsection 2.2 requesting that ABR Loans
be made pursuant to subsection 2.1 on such second Business Day in an
aggregate amount equal to the Dollar Equivalent Amount of the aggregate
amount of all Local Currency Loans (in the case of clause (i) or (ii) above)
or the Affected Local Currency Loans (in the case of clause (iii) above), and
the procedures set forth in subsection 2.2 shall be followed in making such
ABR Loans. The proceeds of such ABR Loans shall be applied to repay such
Local Currency Loans.
(b) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 6.3 to repay Local Currency Loans as
required by such paragraph, effective on the date such ABR Loans would
otherwise have been made, (i) the principal amount of each relevant Local
Currency Loan shall be converted into Dollars (calculated on the basis of the
Exchange Rate as of the immediately preceding Business Day) ("Converted Local
Currency Loans") and (ii) each Bank severally, unconditionally and
irrevocably agrees that it shall purchase in Dollars a participating interest
in such Converted Local Currency Loans in an amount equal to the amount of
ABR Loans which would otherwise have been made by such Bank pursuant to
paragraph (a) of this subsection 6.3. Each Bank will immediately transfer to
the Administrative Agent, in immediately available funds, the amount of its
participation, and the proceeds of such participation shall be distributed by
the Administrative Agent to each relevant Local Currency Bank in such amount
as will reduce the amount of the participating interest retained by such
Local Currency Bank in the Converted Local Currency Loans to the amount of
the ABR Loans which were to have been made by it pursuant to paragraph (a) of
this subsection
6.3. All Converted Local Currency Loans shall bear interest at the rate
which would otherwise be applicable to ABR Loans. Each Bank shall share on a
pro rata basis (calculated by reference to its participating interest in such
Converted Local Currency Loans) in any interest which accrues thereon and in
all repayments thereof.
(c) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 6.3 to repay Local Currency Loans as
required by such paragraph and the principal amount of any Local Currency
Loans may not be converted into Dollars in the manner contemplated by
paragraph (b) of this subsection 6.3, (i) the Administrative Agent shall
determine the Dollar Equivalent Amount of such Local Currency Loans
(calculated on the basis of the Exchange Rate determined as of the Business
Day immediately preceding the date on which ABR Loans would otherwise have
been made pursuant to said paragraph (a)) and (ii) effective on the date on
which ABR Loans would otherwise have been made pursuant to said paragraph
(a), each Bank severally, unconditionally and irrevocably agrees that it
shall purchase in Dollars a participating interest in such Local Currency
Loans in an amount equal to the amount of ABR Loans which would otherwise
have been made by such Bank pursuant to paragraph (a) of this subsection 6.3.
Each Bank will immediately transfer to the Administrative Agent, in
immediately available funds, the amount of its participation, and the
proceeds of such participation shall be distributed by the Administrative
Agent to each relevant Local Currency Bank in such amount as will reduce the
Dollar Equivalent as of such date of the amount of the participating interest
retained by such Local Currency Bank in such Local Currency Loans to the
amount of the ABR Loans which were to have been made by it pursuant to
paragraph (a) of this subsection 6.3. Each Bank shall share on a pro rata
basis (calculated by reference to its participating interest in such Local
Currency Loans) in any interest which accrues thereon, in all repayments of
principal thereof and in the benefits of any collateral furnished in respect
thereof and the proceeds of such collateral.
(d) If any amount required to be paid by any Bank to any Local
Currency Bank pursuant to this subsection 6.3 in respect of any Local
Currency Loan is not paid to such Local Currency Bank on the date such
payment is due from such Bank, such Bank shall pay to such Local Currency
Bank on demand an amount equal to the product of (i) such amount, times (ii)
the daily average Federal funds rate, as quoted by such Local Currency Bank
during the period from and including the date such payment is required to the
date on which such payment is immediately available to the Local Currency
Bank, times (iii) a fraction the numerator of which is the number of days
that elapse during such period and the denominator of which is 360. A
certificate of a Local Currency Bank submitted to any Bank through the
Administrative Agent with respect to any amounts owing under this subsection
(d) shall be conclusive in the absence of manifest error.
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT
7.1 Facility Fee; Utilization Fee; Other Fees; Other Payments. The
Company shall pay to the Administrative Agent for the account of each Bank a
facility fee for the period from and including the Closing Date to, but
excluding, the Termination Date, computed at the Facility Fee Rate in effect
from time to time on the average daily amount of the Commitment (used and
unused) of such Bank during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and
December and on the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein, commencing on the first of
such dates to occur after the date hereof.
(b) The Company shall pay to the Administrative Agent for the
account of each Bank a utilization fee of (i) 0.125% per annum on such Bank's
Commitment Percentage of the aggregate outstanding principal or face amount
amount of Committed Rate Loans, Swing Line Loans, Letters of Credit and Local
Currency Loans for each day on which the Aggregate Committed Outstandings are
equal to or exceed 33-1/3% of the Aggregate Commitments but are less than 66-
2/3% of the Aggregate Commitments and (ii) 0.375% per annum on such Bank's
Commitment Percentage of the aggregate outstanding principal or face amount
of Committed Rate Loans, Swing Line Loans, Letters of Credit and Local
Currency Loans for each day on which the Aggregate Committed Outstandings are
equal to or exceed 66-2/3% of the Aggregate Commitments, in each case,
payable quarterly in arrears on the last day of each March, June, September
and December and on the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein, commencing on the first of
such dates to occur after the date hereof.
(c) The Company agrees to pay to the Administrative Agent, for its
own account and for the account of the Arranger, the fees in the amounts and
on the dates agreed to by such parties in writing prior to the date of this
Agreement.
7.2 Computation of Interest and Fees. Facility and utilization fees
and, whenever it is calculated on the basis of the Prime Rate, interest shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year
for the actual days elapsed; and, otherwise, interest and Letter of Credit
commissions shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify
the relevant Specified Borrower and the Banks of each determination of a
Eurocurrency Rate. Any change in the ABR due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
The Administrative Agent shall as soon as practicable notify the relevant
Borrower and the Banks of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Banks in the absence of manifest error.
7.3 Pro Rata Treatment and Payments. Each payment by the Company on
account of any facility fee or utilization fee hereunder and any reduction of
the Commitments of the Banks shall be made pro rata according to the
respective Commitment Percentages of the Banks. Each disbursement of
Committed Rate Loans in any Currency shall be made by the Banks holding
Commitments in such Currency pro rata according to the respective Borrowing
Percentages of such Banks. Each payment (including each prepayment) by any
Borrower on account of principal of and interest on any Loans in any Currency
shall be made pro rata according to the respective principal amounts of the
Loans of such Currency of such Borrower then due and owing to the Banks. All
payments (including prepayments) to be made by any Borrower hereunder,
whether on account of principal, interest, fees, Reimbursement Obligations or
otherwise, shall be made without set off or counterclaim. All payments in
respect of Committed Rate Loans or Letters of Credit in any Currency shall be
made in such Currency and in immediately available funds at the Payment
Office, and at or prior to the Payment Time, for such Type of Loans and such
Currency, on the due date thereof. The Administrative Agent shall distribute
to the Banks any payments received by the Administrative Agent promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date in respect of Committed Rate
Loans that such Bank will not make the amount that would constitute its
Borrowing Percentage of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Bank is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Bank shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to (A) in the case of any such Committed
Rate Loans denominated in Dollars, the daily average Federal funds rate, as
quoted by the Administrative Agent, or (B) in the case of any Committed Rate
Loans denominated in an Available Foreign Currency, the rate customary in
such Currency for settlement of similar inter-bank obligations, as quoted by
the Administrative Agent, in each case for the period until such Bank makes
such amount immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Bank with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Bank's Borrowing Percentage of such borrowing is not made
available to the Administrative Agent by such Bank within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Swing Line Loans in such Currency hereunder, on demand, from the relevant
Borrower.
7.4 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to make or
maintain Loans or to make or maintain Extensions of Credit to one or more
Foreign Subsidiary Borrowers or Local Currency Borrowers contemplated by this
Agreement, the commitment of such Bank hereunder to make Loans to such
Foreign Subsidiary Borrowers or Local Currency Borrowers, continue Loans to
such Foreign Subsidiary Borrowers or Local Currency Borrowers as such, and
maintain Extensions of Credit to such Foreign Subsidiary Borrowers or Local
Currency Borrowers shall forthwith be cancelled to the extent necessary to
remedy or prevent such illegality. Nothing in this subsection 7.4 shall
affect the obligation of the Banks to make and maintain Loans to the Company.
7.5 Requirements of Law. If the adoption of or any change in any
Requirement of Law (other than the Certificate of Incorporation and By-Laws
or other organizational or governing documents of the Banks) or in the
interpretation or application thereof or compliance by any Bank or Issuing
Bank with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Bank or Issuing Bank or any corporation
controlling such Bank or from which such Bank obtains funding or credit to
any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit or any Eurocurrency Loan or Local Currency Loan made by it, or change
the basis of taxation of payments to such Bank or such corporation in respect
thereof (except for Non-Excluded Taxes covered by subsection 7.6 (including
taxes excluded under the first sentence of subsection 7.6(a)) and changes in
the rate of tax on the overall net income of such Bank or Issuing Bank or
such corporation);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or Issuing Bank or any corporation controlling such Bank
or Issuing Bank or from which such Bank obtains funding or credit which is
not otherwise included in the determination of the Eurocurrency Rate
hereunder or the interest rate on such Local Currency Loans under the
relevant Local Currency Facility; or
(iii) shall impose on such Bank or Issuing Bank or any corporation
controlling such Bank or from which such Bank obtains funding or credit any
other condition; and the result of any of the foregoing is to increase the
cost to such Bank or Issuing Bank or such corporation, by an amount which
such Bank or Issuing Bank or such corporation deems to be material, of
making, converting into, continuing or maintaining Eurocurrency Loans or
Local Currency Loans or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Company shall promptly pay such Bank or Issuing Bank, within five
Business Days after its demand, any additional amounts necessary to
compensate such Bank or Issuing Bank for such increased cost or reduced
amount receivable, together with interest on each such amount from the date
due until payment in full at a rate per annum equal to the ABR plus 2%. If
any Bank or Issuing Bank becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Company, through
the Administrative Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Bank or Issuing Bank, through the
Administrative Agent, to the Company shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this
Agreement and the payment of Loans and all other amounts payable hereunder.
(b) If any Bank shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank or Issuing Bank or from which such Bank or
Issuing Bank obtains funding or credit with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Bank's or Issuing Bank or
such corporation's capital as a consequence of its obligations hereunder or
under any Letter of Credit to a level below that which such Bank or Issuing
Bank or such corporation could have achieved but for such change or
compliance (taking into consideration such Bank's or Issuing Bank or such
corporation's policies with respect to capital adequacy) by an amount deemed
by such Bank or Issuing Bank to be material, then from time to time, after
submission by such Bank or Issuing Bank to the Company (with a copy to the
Administrative Agent) of a written request therefor (which written request
shall be conclusive in the absence of manifest error), the Company shall pay
to such Bank or Issuing Bank such additional amount or amounts as will
compensate such Bank or Issuing Bank for such reduction.
(c) In addition to, and without duplication of, amounts which may
become payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 7.5, each Borrower agrees to pay to each Bank which requests
compensation under this paragraph (c) by notice to such Borrower, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Bank to such Borrower, at any time when such Bank shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Bank may be required by
the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Bank which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate using such reasonable means of allocation
as such Bank shall determine) equal to the actual costs, if any, incurred by
such Bank during such Interest Period as a result of the applicability of the
foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Bank, Issuing Bank, Swing Line Bank or
Local Currency Bank setting forth such amount or amounts as shall be
necessary to compensate such Bank, Issuing Bank, Swing Line Bank or Local
Currency Bank as specified in paragraph (a), (b) or (c) above, as the case
may be, and setting forth in reasonable detail an explanation of the basis of
requesting such compensation in accordance with paragraph (a), (b) or (c)
above, including calculations in detail comparable to the detail set forth in
certificates delivered to such Bank in similar circumstances under comparable
provisions of other comparable credit agreements, shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error. The
relevant Borrower shall pay each Bank, Issuing Bank, Swing Line Bank or Local
Currency Bank the amount shown as due on any such certificate delivered to it
within 10 days after its receipt of the same.
(e) Failure or delay on the part of any Bank or the Issuing Bank
to demand compensation pursuant to this subsection shall not constitute a
waiver of such Bank's or the Issuing Bank's right to demand such
compensation; provided that the Company shall not be required to compensate a
Bank or the Issuing Bank pursuant to this subsection for any increased costs
or reductions incurred more than six months prior to the date that such Bank
or the Issuing Bank, as the case may be, notifies the Company of the event
giving rise to such increased costs or reductions and of such Bank's or the
Issuing Bank's intention to claim compensation therefor; provided further
that, if the event giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this subsection,
a Bank shall not be entitled to compensation pursuant to this subsection in
respect of any Competitive Advance Loan if the event that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Advance Loan Offer pursuant to which such Loan
was made.
(g) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder. 7.6 Taxes. All payments made by any Borrower
under this Agreement shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the
Administrative Agent and each Bank, (i) net income taxes, capital taxes,
doing business taxes and franchise taxes imposed on the Administrative Agent
or such Bank (including, without limitation, each Bank in its capacity as an
Issuing Bank or as a Swing Line Bank), as the case may be, as a result of a
present or former connection between the jurisdiction of the government or
taxing authority imposing such tax and the Administrative Agent or such Bank
(excluding a connection arising solely from the Administrative Agent or such
Bank having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) or any political subdivision or
taxing authority thereof or therein, (ii) taxes required to be withheld
because of a failure to deliver any certificate described in this subsection
7.6 for any reason and (iii) any and all withholding taxes payable with
respect to payments under this Agreement made by the Company or by any
Subsidiary Borrower that was organized under the laws of the United States,
other than any such withholding taxes imposed as a result of any change in or
amendment to the laws of any jurisdiction affecting taxation (including any
regulation or ruling proposed or promulgated by a taxing authority thereof
and any treaty provisions) or any change in the official application,
enforcement or interpretation of such laws, regulations, rulings or treaties
or any other action taken by a taxing authority or a court of competent
jurisdiction, which change, amendment, application, enforcement,
interpretation or action becomes effective after the date hereof (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Non-Excluded Taxes"). If any Non-
Excluded Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Bank hereunder, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the extent necessary
to yield to the Administrative Agent or such Bank (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement. Whenever any Non-
Excluded Taxes are payable by any Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Bank, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If such Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify the Administrative Agent and such Bank for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or such Bank as a result of any such failure. The
agreements in this subsection 7.6(a) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) (i) Each Bank (including each Assignee) that is not
incorporated under the laws of the United States of America or a state
thereof agrees that it will deliver to the Company and the Administrative
Agent concurrently with the delivery of this Agreement (or, in the case of
any Assignee, concurrently with the delivery of an Assignment and Acceptance)
two duly completed copies of (x) United States Internal Revenue Service Form
W-8BEN or W-8ECI or successor applicable form, as the case may be, and (y) an
Internal Revenue Service Form W-8BEN or W-9 or successor applicable form, as
the case may be. Each such Bank also agrees to deliver to the Company and
the Administrative Agent two further copies of the said Form W-8BEN or W-8ECI
and Form W-8BEN or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event (including,
without limitation, a change in such Bank's lending office) requiring a
change in the most recent form previously delivered by it to the Company and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Company or the Administrative Agent, unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or
which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank so advises the Company and the
Administrative Agent. Such Bank shall certify (x) in the case of a Form W-
8BEN or W-8ECI, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes
and (y) in the case of a Form W-8BEN or W-9, that it is entitled to an
exemption from United States backup withholding tax.
(ii) Upon the written request of any Borrower, each Bank
promptly will provide to such Borrower and to the Administrative Agent, or
file with the relevant taxing authority (with a copy to the Administrative
Agent) such form, certification or similar documentation (each duly
completed, accurate and signed) as is required by the relevant jurisdiction
in order to obtain an exemption from, or reduced rate of Non-Excluded Taxes
to which such Bank or the Administrative Agent is entitled pursuant to an
applicable tax treaty or the law of the relevant jurisdiction; provided,
however, such Bank will not be required to (x) disclose information which in
its reasonable judgment it deems confidential or proprietary or (y) incur a
cost if such cost would, in its reasonable judgment, be substantial in
comparison to the cost of the Borrower under this subsection 7.6 of such
Bank's failure to provide such form, certification or similar documentation.
Such Bank shall certify in the case of any such form, certification or
similar documentation so provided (to the extent it may accurately and
properly do so) that it is entitled to receive payments under this Agreement
without deduction or withholding, or at a reduced rate of deduction or
withholding of Non-Excluded Taxes.
(iii) A Bank shall be required to furnish a form under this
paragraph (b) only if it is entitled to claim an exemption from or a reduced
rate of withholding under applicable law. A Bank that is not entitled to
claim an exemption from or a reduced rate of withholding under applicable
law, promptly upon written request of the applicable Borrower, shall inform
the applicable Borrower in writing.
(c) If any Bank is, in its sole opinion, able to apply for any tax
credit, tax deduction or other reduction in tax (a "Tax Benefit") by reason
of any increased amount paid by the Company under this subsection 7.6, such
Bank will use reasonable efforts to obtain such Tax Benefit and, upon receipt
thereof will pay to the Company such amount, not exceeding the increased
amount paid by the Company, as it considers, in its sole opinion, to be equal
to the net after-tax value to such Bank of the Tax Benefit or such part
thereof allocable to such withholding or deduction, having regard to all of
such Bank's dealings giving rise to similar credits and to the cost of
obtaining the same, less any and all expenses incurred by such Bank in
obtaining such Tax Benefit (including any and all professional fees incurred
therewith); provided, however, that (i) no Bank shall be obligated by this
subsection 7.6 to disclose to the Company any information regarding its tax
affairs or computations, (ii) nothing in this subsection 7.6 shall interfere
with the right of each Bank to arrange its tax affairs as it deems
appropriate and (iii) nothing in this subsection 7.6 shall impose an
obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole
opinion, to do so would (x) impose undue hardships, burdens or expenditures
on such Bank or (y) increase such Bank's exposure to taxation by the
jurisdiction in question.
7.7 Company's Options upon Claims for Increased Costs and Taxes. In
the event that any Affected Bank shall decline to make Loans pursuant to
subsection 7.4 or shall have notified the Company that it is entitled to
claim compensation pursuant to subsection 7.5 or 7.6, the Company may
exercise any one or both of the following options:
(a) The Company may request one or more of the Banks which are not
Affected Banks to take over all (but not part) of any Affected Banks' then
outstanding Loans and to assume all (but not part) of any Affected Bank's
Commitments, if any, and obligations hereunder, and if applicable, under any
Local Currency Facility. If one or more Banks shall so agree in writing
(collectively, the "Assenting Banks"; individually, an "Assenting Bank") with
respect to an Affected Bank, (i) the Commitments, if any, of each Assenting
Bank and the obligations of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the Commitments, if any, and
of the obligations of such Affected Bank under this Agreement and if
applicable, under any Local Currency Facility and (ii) each Assenting Bank
shall make Loans to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal amount equal to the
outstanding principal amount of the Loans and, if applicable, Local Currency
Loans, of such Affected Bank, on a date mutually acceptable to the Assenting
Banks, such Affected Bank and the Company. The proceeds of such Loans,
together with funds of the Company, shall be used to prepay the Loans, and if
applicable, Local Currency Loans, of such Affected Bank, together with all
interest accrued thereon and all other amounts owing to such Affected Bank
hereunder (including any amounts payable pursuant to subsection 7.8 in
connection with such prepayment), and, upon such assumption by the Assenting
Bank and prepayment by the Company, such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no longer have any
obligations or rights hereunder (other than any obligations or rights which
according to this Agreement shall survive the termination of this Agreement).
(b) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any such Affected Bank hereunder
and if applicable, under any Local Currency Facility, and to purchase the
outstanding Loans of such Affected Bank and such Affected Bank's rights
hereunder and with respect thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank (unless such Affected Bank agrees otherwise),
for a purchase price equal to the outstanding principal amount of the Loans
and, if applicable, Local Currency Loans, of such Affected Bank plus (i) all
interest accrued and unpaid thereon and all other amounts owing to such
Affected Bank hereunder and (ii) any amount which would be payable to such
Affected Bank pursuant to subsection 7.8, and upon such assumption and
purchase by the Replacement Bank, such Replacement Bank, if it is not already
a Bank, shall be deemed to be a "Bank" for purposes of this Agreement and
such Affected Bank shall cease to be a "Bank" for purposes of this Agreement
and shall no longer have any obligations or rights hereunder (other than any
obligations or rights which according to this Agreement shall survive the
termination of this Agreement).
7.8 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan or Committed Rate Loan other than on the
last day of an Interest Period therefor (including as a result of an Event of
Default and as a result of the provisions of subsection 2.11 or 2.12), (b)
the conversion of any Eurocurrency Loan other than on the last day of an
Interest Period therefor, (c) the failure to borrow, convert, continue or
prepay any Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable hereunder and
is revoked in accordance herewith), (d) the failure to borrow any Competitive
Advance Loan after accepting the Competitive Advance Loan Offer to make such
Loan, or (e) the assignment as a result of a request by the Company pursuant
to subsection 7.7 of any Eurocurrency Loan other than on the last day of an
Interest Period therefor or of any Competitive Advance Loan, then, in any
such event, the Company shall compensate each Bank for the loss, cost and
expense attributable to such event. In the case of a Eurocurrency Loan, the
loss to any Bank attributable to any such event shall be deemed to include an
amount determined by such Bank to be equal to the excess, if any, of (i) the
amount of interest that such Bank would pay for a deposit equal to the
principal amount of such Bank denominated in the Currency of such Loan for
the period from the date of such payment, conversion, failure or assignment
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the duration of the
Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Eurocurrency Rate for such Currency for such Interest Period, over (ii) the
amount of interest that such Bank would earn on such principal amount for
such period if such Bank were to invest such principal amount for such period
at the interest rate that would be bid by such Bank (or an affiliate of such
Bank) for deposits denominated in such Currency from other banks in the
eurocurrency market at the commencement of such period. The Company shall
also compensate each relevant Bank for any loss, cost or expense suffered by
such Bank as a result of the conversion, pursuant to subsection 2.11(b) or
6.3(b), of the Currency in which a Loan is denominated, or the purchase or
sale, pursuant to subsection 2.11(c) or 6.3(c), of a participating interest
in any Loan. A certificate of any Bank setting forth any amount or amounts
that such Bank is entitled to receive pursuant to this Section shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay such Bank the amount shown as due on any such certificate
within 10 days after receipt thereof.
7.9 Determinations. In making the determinations contemplated by
subsection 7.5, 7.6 and 7.8, each Bank may make such estimates, assumptions,
allocations and the like that such Bank in good faith determines to be
appropriate. Upon request of the Company, each Bank shall furnish to the
Company, at any time after demand for payment of an amount under subsection
7.5(a) or 7.8, a certificate outlining in reasonable detail the computation
of any amounts owing. Any certificate furnished by a Bank shall be binding
and conclusive in the absence of manifest error.
7.10 Change of Lending Office. If an event occurs with respect to any
Bank that makes operable the provisions of subsection 7.4 or entitles such
Bank to make a claim under subsection 7.5 or 7.6, such Bank shall, if
requested in writing by the Company, to the extent not inconsistent with such
Bank's internal policies, use reasonable efforts to (a) designate another
office or offices for the making and maintaining of its Loans or (b) obtain a
different source of funds or credit, as the case may be, the designation or
obtaining of which will eliminate such operability or reduce materially the
amount such Bank is so entitled to claim, provided that such designation or
obtaining would not, in the sole discretion of such Bank, result in such Bank
incurring any costs unless the Company has agreed to reimburse such Bank
therefor.
7.11 Company Controls on Exposure; Calculation of Exposure; Prepayment
if Exposure exceeds Commitments. The Company will implement and maintain
internal accounting controls to monitor the borrowings and repayments of
Loans by the Borrowers and the issuance of and drawings under Letters of
Credit, with the object of preventing any request for an Extension of Credit
that would result in (i) the Exposure of the Banks being in excess of the
Commitments, or (ii) the Foreign Currency Exposure in respect of any Currency
exceeding the Foreign Currency Exposure Sublimit for such Currency, and of
promptly identifying and remedying any circumstance where, by reason of
changes in exchange rates, (i) the aggregate amount of the Exposure exceeds
the Commitments, or (ii) the amount of the Foreign Currency Exposure in
respect of any Currency exceeds the Foreign Currency Exposure Sublimit for
such Currency. In the event that at any time the Company determines that (i)
the aggregate amount of the Exposure of the Banks exceeds the aggregate
amount of the Commitments by more than 5%, or (ii) the amount of the Foreign
Currency Exposure in respect of any Currency exceeds the Foreign Currency
Exposure Sublimit for such Currency, the Company will, as soon as practicable
but in any event within five Business Days of making such determination, make
or cause to be made such repayments or prepayments of Loans as shall be
necessary to cause (i) the aggregate amount of the Exposure of the Banks to
no longer exceed the Commitments, and (ii) the amount of the Foreign Currency
Exposure in respect of any Currency not to exceed the Foreign Currency
Exposure Sublimit for such Currency.
(b) The Administrative Agent will calculate the aggregate amount
of the Exposure of the Banks from time to time, and in any event not less
frequently than once during each calendar month. In making such
calculations, the Administrative Agent will rely on the information most
recently received by it from the Swing Line Banks in respect of outstanding
Swing Line Loans, from Banks in respect of outstanding Competitive Advance
Loans, from Local Currency Facility Agents in respect of outstanding Local
Currency Loans and Issuing Banks in respect of L/C Obligations. Upon making
each such calculation, the Administrative Agent will inform the Company and
the Banks of the results thereof.
(c) In the event that on any date the Administrative Agent
calculates that (i) the aggregate amount of the Exposure of the Banks exceeds
the aggregate amount of the Commitments by more than 5%, or (ii) the Foreign
Currency Exposure in respect of any Currency exceeds the Foreign Currency
Exposure Sublimit for such Currency, the Administrative Agent will give
notice to such effect to the Company. After receipt of any such notice, the
Company will, as soon as practicable but in any event within five Business
Days of receipt of such notice, make or cause to be made such repayments or
prepayments of Loans as shall be necessary to cause (i) the aggregate amount
of the Exposure of the Banks to no longer exceed the Commitments, or (ii) the
Foreign Currency Exposure in any respect of any Currency not to exceed the
Foreign Currency Exposure Sublimit for such Currency.
(d) If at any time the Committed Exposure of any Bank exceeds such
Bank's Commitment, upon demand of such Bank, the Company will within one
Business Day prepay Loans in such amounts that after giving effect to such
prepayment the Committed Exposure of such Bank does not exceed its
Commitment.
(e) Any prepayment required to be made pursuant to this subsection
7.11 shall be accompanied by payment of amounts payable, if any, pursuant to
subsection 7.8 in respect of the amount so prepaid.
SECTION 8. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Administrative Agent and the Banks to enter into
this Agreement and to make the Loans and issue or participate in the Letters
of Credit, the Company and each Subsidiary Borrower (insofar as the
representations and warranties by such Subsidiary Borrower relate to it)
hereby represents and warrants to each Agent, the Administrative Agent and
each Bank that:
8.1 Financial Condition. The audited consolidated balance sheets of
the Company and its consolidated Subsidiaries as at December 31, 1999 and the
related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young LLP, copies of which
have heretofore been furnished to each Bank or will be furnished to each Bank
that has not already received such copies, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The unaudited
consolidating balance sheet of the Company and its consolidated Subsidiaries
by legal entity (with respect to Subsidiaries organized under the laws of the
United States and Canada) and by principal operating group (with respect to
other Subsidiaries) as at September 30, 2000, the related unaudited
consolidating statement of operations and retained earnings for the portion
of the fiscal year ended on September 30, 2000 and the press release of the
Company with respect to its earnings for fiscal year ended December 31, 2000
(dated February 13, 2001), certified by a Responsible Officer, copies of
which have heretofore been furnished to each Bank or will be furnished to
each Bank that has not already received such copies, present fairly the
consolidating financial condition of the Company and its consolidated
Subsidiaries by legal entity (with respect to Subsidiaries organized under
the laws of the United States and Canada) and by principal operating group
(with respect to other Subsidiaries) as at such date, and the consolidating
results of their operations for the fiscal year then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible
Officer, as the case may be, and as disclosed therein). Neither the Company
nor any of its consolidated Subsidiaries had, at the date of the most recent
balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or
unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or referred to in the notes thereto.
During the period from September 30, 2000 to and including the date hereof
there has been no sale, transfer or other disposition by the Company or any
of its consolidated Subsidiaries of any material part of its business or
property and no purchase or other acquisition of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Company and its consolidated
Subsidiaries at September 30, 2000 (except for the acquisitions by the
Company of the Wyle Group of Companies and of Mid Range Open Computing
Alliance (formerly named Merisel Open Computing Alliance, Inc.) and as
otherwise disclosed in writing to the Banks prior to the Closing Date).
8.2 No Change. Since December 31, 1999 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
8.3 Corporate Existence; Compliance with Law. The Company and each of
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate
or other power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure
to be duly qualified or in good standing could not reasonably be expected to
have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.4 Corporate Power; Authorization; Enforceable Obligations. Each of
the Company and its Subsidiaries has the corporate or other power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the execution, delivery and performance of
the Credit Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents. This Agreement has been, and each
other Credit Document to which the Company or any of its Subsidiaries is a
party will be, duly executed and delivered on behalf of the Company or such
Subsidiary, as the case may be. This Agreement constitutes, and each other
Credit Document to which it is a party when executed and delivered will
constitute, a legal, valid and binding obligation of the Company or any of
its Subsidiaries party thereto enforceable against the Company or such
Subsidiary, as the case may be, in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
8.5 No Legal Bar. The execution, delivery and performance of the
Credit Documents to which the Company or any of its Subsidiaries is a party,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or Contractual Obligation of the Company or of any of
its Subsidiaries (except for violations of Contractual Obligations which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation,
except for the Liens expressly permitted by subsection 11.3.
8.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
with respect to any of the Credit Documents or any of the transactions
contemplated hereby or thereby.
8.7 No Default. No Default or Event of Default has occurred and is
continuing.
8.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, except where the failure
to have such title or such leasehold interest, as the case may be, could not
reasonably be expected to have a Material Adverse Effect, and none of such
property is subject to any Lien except as permitted by subsection 11.3.
8.9 Intellectual Property. Each of the Company and each of its
Subsidiaries owns, or is licensed to use, all domestic and foreign
trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted (the
"Intellectual Property") except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse Effect. No claim
has been asserted and is pending or, to the knowledge of the Company, has
been threatened by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property which could reasonably be expected to have a Material
Adverse Effect, nor does the Company know of any valid basis for any such
claim. The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
8.10 Local Currency Facilities. Schedule 8.10 sets forth, as of the
Closing Date, all Local Currency Facilities (including the Local Currency
Borrower, Local Currency Banks, Local Currency Facility Agent, Local Currency
Facility Maximum Borrowing Amount and Local Currency Bank Maximum Borrrowing
Amount with respect thereto).
8.11 Taxes. Each of the Company and its consolidated Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Company, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than any unfiled tax
returns for taxes, and unpaid taxes, fees and other charges, (a) the amount
or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its consolidated
Subsidiaries, as the case may be, or (b) which in each case, individually or
in the aggregate, would not cause the Company and its consolidated
Subsidiaries to have a liability in excess of $5,000,000 or the Dollar
Equivalent Amount thereof); no notice of tax Lien has been filed, and, to the
knowledge of the Company, no claim is being asserted by any taxing authority,
with respect to any such tax, fee or other charge except for claims the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its consolidated
Subsidiaries, as the case may be, and claims for amounts which, in the
aggregate, do not exceed $5,000,000.
8.12 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
regulations of such Board of Governors. If requested by any Bank or the
Administrative Agent, the Company will furnish to the Administrative Agent
and each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
8.13 ERISA. Each Plan which is intended to be qualified under Section
401(a) (or 403(a) as appropriate) of the Code and each related trust
agreement, annuity contract or other funding instrument which is intended to
be tax-exempt under Section 501(a) of the Code is so qualified and tax-exempt
and has been so qualified and tax-exempt during the period from its adoption
to date. No event has occurred in connection with which the Company or any
Commonly Controlled Entity or any Plan, directly or indirectly, could
reasonably be expected to be subject to any material liability under ERISA,
the Code or any other law, regulation or governmental order or under any
agreement, instrument, statute, rule of law or regulation pursuant to or
under which the Company or a Subsidiary has agreed to indemnify or is
required to indemnify any person against liability incurred under, or for a
violation or failure to satisfy the requirements of, any such statute,
regulation or order. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of
all accrued benefits under each Single Employer Plan maintained by the
Company or any Commonly Controlled Entity or for which the Company or any
Commonly Controlled Entity has or could have any liability (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Company nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Company nor any Commonly Controlled Entity could reasonably be expected to
become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the unfunded liability of the
Company and each Commonly Controlled Entity for benefits under all unfunded
retirement or severance plans, programs, policies or other arrangements
(including, without limitation, post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA)), whether or not funded does not,
in the aggregate, exceed $5,000,000 (excluding those arrangements set forth
on Schedule 8.13).
8.14 Investment Company Act; Other Regulations. Neither the Company
nor any Subsidiary of the Company is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. Neither the Company nor any Subsidiary of
the Company is subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
8.15 Subsidiaries. On the Closing Date, the only Subsidiaries of the
Company, and the only material partnerships or joint ventures in which the
Company or any Subsidiary has an interest, are those set forth on Schedule
8.15. On the Closing Date, the Company owns the percentage of the issued and
outstanding Capital Stock or other evidences of the ownership of each
Subsidiary, partnership or joint venture set forth on Schedule 8.15 as set
forth on such Schedule. On the Closing Date, except as set forth on Schedule
8.15, no such Subsidiary, partnership or joint venture has issued any
securities convertible into shares of its Capital Stock. The outstanding
stock and securities (or other evidence of ownership) of such Subsidiaries,
partnerships or joint ventures owned by the Company and its Subsidiaries are
owned by the Company and its Subsidiaries free and clear of all Liens,
warrants, options or rights of others of any kind whatsoever except for Liens
permitted by subsection 11.3.
8.16 Accuracy and Completeness of Information. No document furnished
or statement made in writing to the Banks by the Company in connection with
the negotiation, preparation or execution of this Agreement or any of the
other Credit Documents contains any untrue statement of a material fact, or
omits to state any such material fact necessary in order to make the
statements contained therein not misleading, in either case which has not
been corrected, supplemented or remedied by subsequent documents furnished or
statements made in writing to the Banks. All other written information,
reports and other papers and data with respect to the Company and its
Subsidiaries (other than financial statements), furnished to the Banks by the
Company, or on behalf of the Company, were (a) in the case of those not
prepared for delivery to the Banks, to the Company's knowledge, at the time
the same were so furnished, complete and correct in all material respects for
the purposes for which the same were prepared and (b) in the case of those
prepared for delivery to the Banks, to the Company's knowledge, complete and
correct in all material respects, or have been subsequently supplemented by
other information, reports or other papers or data, to the extent necessary
to give the Banks a true and
accurate knowledge of the subject matter in all material respects, it being
understood that financial projections as to future events are not to be
viewed as facts and that actual results may differ from projected results.
8.17 Purpose of Loans; Commitments. The proceeds of the Loans shall be
used by the Company for working capital purposes in the ordinary course of
business and for general corporate purposes of the Company and, to the extent
permitted hereunder, its Subsidiaries, and the Commitments may be used by the
Company as backup for its commercial paper program.
8.18 Environmental Matters. Except as set forth on Schedule 8.18 or
insofar as there is no reasonable likelihood of a Material Adverse Effect
arising from any combination of facts or circumstances inconsistent with any
of the following:
(a) The facilities and properties owned or operated by the
Company or any of its Subsidiaries (the "Properties") do not contain, and to
the knowledge of the Company or its Subsidiaries, have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no
contamination at, under or to the knowledge of the Company about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties.
(c) Neither the Company nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Company or any of its Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Company or any of its Subsidiaries,
Materials of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location which
could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened, under any Environmental Law to which the Company or
any Subsidiary is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other analogous
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of Materials
of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Company or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of
or in amounts or in a manner that could reasonably give rise to liability
under any applicable Environmental Laws.
SECTION 9. CONDITIONS PRECEDENT
9.1 Conditions to Closing Date. The occurrence of the Closing Date,
and the agreement of each Bank to make the initial Extension of Credit
requested to be made by it on or after the Closing Date, shall be subject to
the satisfaction, on or prior to the Closing Date, of the following
conditions precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Company, with a counterpart for each Bank, (ii) for the
account of each Bank, the Company Guarantee executed and delivered by a duly
authorized officer of the Company, with a counterpart or conformed copy for
each Bank and (iii) each Initial Subsidiary Guarantee, executed and delivered
by a duly authorized officer of the Guarantor party thereto, with a
counterpart or a conformed copy for each Bank.
(b) Corporate Proceedings of each Loan Party. The Administrative
Agent shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the Board of Directors of each Loan Party (except any Foreign Subsidiary
Borrower) authorizing (i) the execution, delivery and performance of each
Credit Document to which it is a party and (ii) in the case of each Borrower
(except any Foreign Subsidiary Borrower), the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such Loan
Party as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(c) Fees and Expenses. The Administrative Agent shall have
received the fees and expenses to be received on or prior to the Closing
Date pursuant to subsection 7.1(c).
(d) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Company and the Subsidiary Borrowers,
substantially in the form of Exhibit G-1, with such modifications therein as
shall be reasonably requested or approved by the Administrative Agent; and
(ii) the executed legal opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
general counsel of the Company, substantially in the form of Exhibit G-2,
with such modifications therein as shall be reasonably requested or approved
by the Administrative Agent. Each such legal opinion shall cover such other
matters incident to the transactions contemplated by this Agreement and the
other Credit Documents as the Administrative Agent may reasonably require.
(e) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) which in the reasonable judgment of any
Bank could have a Material Adverse Effect.
(f) 364-Day Credit Agreement. The conditions precedent for the
occurrence of the Closing Date under (and as defined in) the 364-Day Credit
Agreement shall have been satisfied.
(g) Existing Credit Agreement. Any principal, interest, fees or
other amounts owing or accrued and unpaid under the Existing Credit Agreement
to any Person which is a Bank under (and as defined in) the Existing Credit
Agreement shall have been paid in full to such Person.
(h) Ratings. The Rating in effect on such date by S&P shall not
be lower than BBB and by ▇▇▇▇▇'▇ shall not be lower than Baa2.
(i) Additional Matters. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent.
9.2 Conditions to Each Extension of Credit. The agreement of each Bank
to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit, but
excluding any Committed Rate Loan made pursuant to a Notice of Swing Line
Refunding, pursuant to subsections 5.5(c) or 6.3 or pursuant to subsection
2.6(c) if the Dollar Equivalent Amount thereof is not increased) is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Company and its Subsidiaries in or pursuant to the
Credit Documents (other than in respect of each Extension of Credit made
after the Closing Date, subsection 8.2) shall be true and correct in all
material respects on and as of such date as if made on and as of such date
except for representations and warranties expressly stated to relate to a
specific earlier date, in which case such representations and warranties are
true and correct as of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date after giving effect to the Loans
requested to be made on such date.
(c) No Material Adverse Change in Subsidiary Borrowers. If such
Extension of Credit is to or for a Subsidiary Borrower, no event which has or
could reasonably expected to have a material adverse effect on the ability of
such Subsidiary Borrower to perform its obligations under this Agreement
shall have occurred.
(d) Borrowing Certificate. In the case of the first requested
borrowing subsequent to the Closing Date, the Administrative Agent shall have
received with a counterpart for each Bank, a certificate of the Company,
dated as of such date, substantially in the form of Exhibit E, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent, executed by any Responsible Officer of the Company.
(e) Foreign Subsidiary Borrowers. In the case of the first
requested borrowing by each Foreign Subsidiary Borrower, the Company shall
deliver to the Administrative Agent on or prior to such date a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the Board of Directors of such Foreign Subsidiary Borrower authorizing (1)
the execution, delivery and performance of each Credit Document to which it
is a party and (2) the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary or other authorized officer of such
Foreign Subsidiary Borrower as of the Closing Date, which certificate shall
be in form and substance satisfactory to the Administrative Agent and shall
state that the resolutions thereby certified have not been amended, modified,
revoked or rescinded. Each borrowing by and Letter of Credit issued on
behalf of any Borrower shall constitute a representation and warranty by the
Company and such Borrower as of the date of such Loan and/or Letter of Credit
that the conditions contained in this subsection 9.2 have been satisfied.
SECTION 10. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding and unpaid or any other amount is
owing to any Bank, any Agent or the Administrative Agent hereunder or under
any Local Currency Facility, the Company shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of
its Subsidiaries to:
10.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days after
the end of each fiscal year of the Company, a copy of the audited
consolidated balance sheet of the Company and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of
operations and shareholders equity and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young or
other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Banks; provided that the
Company may in lieu of furnishing such financial statements furnish to each
Bank its Form 10-K filed with the Securities and Exchange Commission or any
successor or analogous Governmental Authority for such year;
(b) as soon as available, but in any event within 120 days after
the end of each fiscal year of the Company, the unaudited consolidating
balance sheet of the Company and its consolidated Subsidiaries by legal
entity (with respect to Subsidiaries organized under the laws of the United
States and Canada) and by principal operating group (with respect to other
Subsidiaries) as at the end of such year and the related
unauditedconsolidating statements of operations of the Company and its
consolidated Subsidiaries by legal entity (with respect to Subsidiaries
organized under the laws of the United States and Canada) and by principal
operating group (with respect to other Subsidiaries) for such year, setting
forth in each case in comparative form the figures for the previous year,
certified pursuant to subsection 10.2(b) by a Responsible Officer as fairly
presenting the consolidating financial condition and results of operations of
the Company and its consolidated Subsidiaries by legal entity (with respect
to Subsidiaries organized under the laws of the United States and Canada) and
by principal operating group (with respect to other Subsidiaries);
(c) as soon as available, but in any event within 60 days after
the end of each of the first three quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and shareholders' equity and
of cash flows of the Company and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for such quarter
of the previous year, certified by a Responsible Officer as fairly presenting
in all material respects when considered in relation to the consolidated
financial statements of the Company and its consolidated Subsidiaries
(subject to normal year-end audit adjustments); provided that the Company may
in lieu of furnishing such unaudited consolidated balance sheet furnish to
each Bank its Form 10-Q filed with the Securities and Exchange Commission or
any successor or analogous Governmental Authority for the relevant quarterly
period; and
(d) as soon as available, but in any event within 60 days after
the end of each of the first three quarterly periods of each fiscal year of
the Company, the unaudited consolidating balance sheet of the Company and its
consolidated Subsidiaries by legal entity (with respect to Subsidiaries
organized under the laws of the United States and Canada) and by principal
operating group (with respect to other Subsidiaries) as at the end of such
quarter and the related unaudited consolidating statements of operations of
the Company and its consolidated Subsidiaries by legal entity (with respect
to Subsidiaries organized under the laws of the United States and Canada) and
by principal operating group (with respect to other Subsidiaries) for such
quarter and the portion of the fiscal year through the end of such quarter,
in the case of the unaudited consolidating balance sheet setting forth in
comparative form the figures for the previous year (but not the corresponding
figures for such quarter of the previous year) and in the case of the
statements of operations setting forth in comparative form the figures for
such quarter of the previous year, certified by a Responsible Officer as
fairly presenting the consolidating financial condition and results of
operations of the Company and its consolidated Subsidiaries by legal entity
(with respect to Subsidiaries organized under the laws of the United States
and Canada) and by principal operating group (with respect to other
Subsidiaries) (subject to normal year-end audit adjustments); the financial
statements to be furnished pursuant to this subsection 10.1 shall fairly
present the consolidated (or consolidating by legal entity or principal
operating group, as appropriate) financial position and results of operations
of the Company and its consolidated Subsidiaries in accordance with GAAP
(subject, in the case of subsections 10.1(c) and (d), to normal year-end
audit adjustments and the absence of complete footnotes) applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or Responsible Officer, as the case may be, and
disclosed therein).
10.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a certificate of a
Responsible Officer substantially in the form of Exhibit H;
(c) concurrently with the delivery of the financial statements
referred to in subsection 10.1(c), a certificate of a Responsible Officer (i)
stating that, to the best of such Responsible Officer's knowledge, the
Company has observed and performed all of its covenants and other agreements
contained in this Agreement and the other Credit Documents to which it is a
party to be observed or performed by it, (ii) that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified therein and (iii) setting forth calculations supporting compliance
with subsections 11.1(a), (b) and (c) and 11.2;
(d) as soon as delivered, a copy of the letter, addressed to the
Company, of the certified public accountants who prepared the financial
statements referred to in subsection 10.1(a) for such fiscal year and
otherwise referred to as a "management letter";
(e) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its stockholders
generally, and within five days after the same are filed, copies of all
financial statements and reports which the Company or any of its Subsidiaries
may make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(f) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(c), a certificate of a
Responsible Officer setting forth the name of each Foreign Subsidiary
Borrower and each outstanding Swing Line Loan, Competitive Advance Loan,
Local Currency Loan made and Letter of Credit issued to the Foreign
Subsidiary Borrowers as of the date of such financial statements; and
(g) promptly, such additional documents, instruments, legal
opinions or financial and other information as the Administrative Agent or
any Bank may from time to time reasonably request.
10.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including, without limitation, all
obligations in respect of taxes, except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be, or where
the failure to pay, discharge or otherwise satisfy could not reasonably be
expected to have a Material Adverse Effect.
10.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as
otherwise permitted pursuant to subsection 11.4; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
10.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition, except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against
at least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business; and
furnish to each Bank, upon written request, full information as to the
insurance carried.
10.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which the entries are, in all material
respects, full, true and correct in conformity with sound business practice
and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and, upon reasonable notice under
the circumstances, permit representatives of the Administrative Agent to
visit and inspect any of its properties and examine and make abstracts from
any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants.
10.7 Notices. Promptly, after the Company becomes aware thereof, give
notice to the Administrative Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case of clauses (i) or (ii), if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse Effect
or cause a Default or an Event of Default;
(c) any litigation or proceeding affecting the Company or any of
its Subsidiaries (i) in which the amount involved is $5,000,000 or more and
not covered by insurance or (ii) in which injunctive or similar relief is
sought which could reasonably be expected to have a Material Adverse Effect;
(d) the following events: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Company or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating (other than a standard
termination under Section 4041(b) of ERISA), Reorganization or Insolvency of,
any Plan; and
(e) any change, development or event involving a prospective
change, which has had or could reasonably be expected to have a Material
Adverse Effect. Each notice pursuant to this subsection shall be accompanied
by a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Company proposes
to take with respect thereto.
10.8 Environmental Laws. Comply with, and take all reasonable efforts
to ensure compliance by all tenants and subtenants, if any, in all material
respects with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and undertake all reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect.
10.9 Additional Subsidiary Guarantees. In the event that any Domestic
Subsidiary which is not a Guarantor shall account for more than 3% of Total
Assets at any date, take all actions necessary to cause such Domestic
Subsidiary to execute and deliver a Subsidiary Guarantee, within 60 days of
the occurrence of such event, provided that in the event that Domestic
Subsidiaries which are not Guarantors shall account for more than 8% of Total
Assets at any date, the Company shall take all actions necessary to cause a
sufficient number of such Domestic Subsidiaries to execute and deliver a
Subsidiary Guarantee such that, within 60 days of the occurrence of such
event, Domestic Subsidiaries which are not Guarantors shall not account for
more than 8% of Total Assets.
10.10 Foreign Subsidiary Borrowers. Within 45 days after the Closing
Date, the Company shall deliver to the Administrative Agent (i) an executed
Foreign Subsidiary Opinion of counsel to each Foreign Subsidiary Borrower
that is a party to this Agreement on the Closing Date if the aggregate
Exposure of such Subsidiary owing to all Banks as of the Closing Date exceeds
$20,000,000 and (ii) a copy of all documentation with respect to all Local
Currency Facilities.
SECTION 11. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding and unpaid or any other amount is
owing to any Bank, any Agent or the Administrative Agent hereunder or under
any Local Currency Facility:
11.1 Financial Condition Covenants. The Company shall not:
(a) Maintenance of Indebtedness. Permit Consolidated Total Debt
at any time to exceed (a) from the Closing Date through September 30, 2001,
an amount equal to 70.0% of Consolidated Total Capitalization, (b) from
October 1, 2001 through December 31, 2001, an amount equal to 67.5% of
Consolidated Total Capitalization, (c) from January 1, 2002 through March 31,
2002, an amount equal to 65.0% of Consolidated Total Capitalization, (d) from
April 1, 2002 through June 30, 2002, an amount equal to 60.0% of Consolidated
Total Capitalization, and (e) thereafter, an amount equal to 57.5% of
Consolidated Total Capitalization.
(b) Maintenance of Net Worth. Permit Consolidated Net Worth at
any time to be less than an amount equal to the sum of 85.0% of Consolidated
Net Worth as of December 31, 2000 plus 50% of cumulative Consolidated Net
Income for the fiscal quarter commencing January 1, 2001 and for each fiscal
quarter thereafter (without subtraction for any fiscal quarter during which
Consolidated Net Income is a negative number).
(c) Interest Coverage. Permit for any period of four consecutive
fiscal quarters at any time the ratio of Adjusted Consolidated EBITDA to
Consolidated Cash Interest Expense to be less than 3.0 to 1.0.
11.2 Limitation on Indebtedness of Domestic Subsidiaries. The Company
shall not permit any of its Domestic Subsidiaries to, and the Domestic
Subsidiaries shall not, directly or indirectly, create, incur, assume or
suffer to exist any Indebtedness, except (a) Indebtedness in an aggregate
amount not to exceed 10% of Consolidated Net Worth, (b) any Indebtedness of
Domestic Subsidiaries pursuant to any of the Credit Documents, (c) any
Indebtedness of the Domestic Subsidiaries pursuant to the Subsidiary
Guarantees under (and as defined in) the 364-Day Credit Agreement, and (d)
any Guarantee Obligation of any Domestic Subsidiary guaranteeing Indebtedness
of the Company otherwise permitted hereunder so long as such Domestic
Subsidiary shall have executed and delivered to the Administrative Agent a
Subsidiary Guarantee and such Subsidiary Guarantee shall be in full force and
effect.
11.3 Limitation on Liens. The Company shall not, and shall not permit
any of its Domestic Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its Domestic
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company
or such Domestic Subsidiary;
(f) Liens created in connection with the securitization of
Receivables; provided that (i) the aggregate net proceeds of any such
securitization transaction shall not exceed $750,000,000 and (ii) any such
securitization transaction shall be a Permitted Receivables Securitization;
(g) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Company or
any Subsidiary and (iii) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such security
interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such construction
or improvement, (ii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets and
(iii) such security interests shall not apply to any other property or assets
of the Company or any Subsidiary; and
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Domestic Subsidiaries) a
Dollar Equivalent Amount equal to $75,000,000 at any time outstanding.
11.4 Limitation on Fundamental Changes. The Company shall not, and
shall not permit any of its Domestic Subsidiaries to, directly or indirectly,
enter into any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of, all or substantially
all of its property, business or assets, except:
(i) any Subsidiary may be merged or consolidated with or into the
Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any one or more wholly-owned Domestic
Subsidiaries; and
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or any other wholly owned Domestic Subsidiary.
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) (i) Any Specified Borrower shall fail to pay any principal of
any Loan or any Reimbursement Obligation owing by it when due (whether at the
stated maturity, by acceleration or otherwise) in accordance with the terms
hereof; or (ii) any Local Currency Borrower shall fail to pay any principal
of or interest on any Local Currency Loan when due in accordance with the
applicable terms of the relevant Local Currency Facility; or (iii) any
Specified Borrower shall fail to pay any interest on any Loan or any fee or
any other amount payable hereunder, within five days after any such interest
or other amount becomes due in accordance with the terms thereof or hereof;
or
(b) Any representation or warranty made or deemed made by the
Company or any Subsidiary herein or in any other Credit Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Credit Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company or any Subsidiary shall default in the observance
or performance of any agreement contained in Section 11 and, with respect to
subsections 11.2 and 11.3, such default shall continue unremedied for a
period of 30 days; or
(d) The Company or any Subsidiary shall default in the observance
or performance of any other agreement contained in this Agreement or any
other Credit Document (other than as provided in paragraphs (a) through (c)
of this Section), and such default shall continue unremedied for a period of
30 days after the Company has knowledge thereof; or
(e) Any of the Credit Documents shall cease, for any reason, to be
in full force and effect, or the Company shall so assert in writing (except
for the termination of any Local Currency Facility if all Local Currency
Loans and other amounts owing thereunder are paid in full); or
(f) The Company or any of its consolidated Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness (other
than the Loans and Reimbursement Obligations) or in the payment of any
Guarantee Obligation, in either case with an outstanding principal amount in
excess of a Dollar Equivalent Amount equal to $50,000,000 when due beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(g) (i) Any Specified Borrower, or any Subsidiary that, directly or
indirectly, accounts for more than 5% of Total Assets, at any date shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Company or any such Subsidiary shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Specified Borrower or any Subsidiary any case,
proceeding or other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against any Specified Borrower
or any Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the Company
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Banks,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions,
if any, could reasonably be expected to subject the Company to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
Company; or
(i) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of a Dollar Equivalent Amount equal
to $25,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(j) The Company Guarantee or any Subsidiary Guarantee shall cease,
for any reason, to be in full force and effect or any Guarantor party thereto
shall so assert; or
(k) A Change in Control shall occur; then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (g) above with respect to the Company, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall become immediately due and
payable and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Required
Banks, the Administrative Agent may, or upon the request of the Required
Banks, the Administrative Agent shall, by notice to the Company declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required Banks, the
Administrative Agent shall, by notice to the Company, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding sentence, the applicable Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of Letters
of Credit issued for its account. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Banks and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of such Borrower under this Agreement and the other Loan
Documents. Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the applicable Borrower hereunder. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the applicable Borrower hereunder shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
applicable Borrower. The Borrowers shall execute and deliver to the
Administrative Agent, for the account of the Issuing Banks and the L/C
Participants, such further documents and instruments as the Administrative
Agent may request to evidence the creation and perfection of the within
security interest in such cash collateral account. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 13. THE ADMINISTRATIVE AGENT; THE AGENTS; THE ARRANGER
13.1 Appointment. Each Bank hereby irrevocably designates and appoints
Chase as the Administrative Agent of such Bank under this Agreement and the
other Credit Documents, and each such Bank irrevocably authorizes Chase, as
the Administrative Agent for such Bank, to take such action on its behalf
under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
13.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
13.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Banks
for any recitals, statements, representations or warranties made by the
Company or any officer thereof contained in this Agreement or any other
Credit Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the Company
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of the Company.
13.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any other Credit Document unless it shall first receive such advice or
concurrence of the Required Banks or all of the Banks, as may be required
hereunder, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected from liability
to the Banks in acting, or in refraining from acting, under this Agreement
and the other Credit Documents in accordance with a request of the Required
Banks or all of the Banks, as may be required hereunder, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Banks and their respective successors and assigns.
13.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Bank or the Company referring to this Agreement, describing such Default or
Event of Default 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 notice thereof to the Banks. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks or all
of the Banks, as may be required hereunder; provided that unless and until
the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
13.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its Loans hereunder and enter into this Agreement and the other Credit
Documents to which it is or will be a party. Each Bank also represents 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 analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company and its Subsidiaries which may come into the
possession of the Administrative Agent and any Issuing Bank or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
13.7 Indemnification. The Banks agree to indemnify the Administrative
Agent and each Issuing Bank in their respective capacities as such (to the
extent not reimbursed by the Company and without limiting the obligation of
the Company to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought under
this subsection (or, if indemnification is sought after the date upon which
the Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent or any
Issuing Bank in any way relating to or arising out of this Agreement, any of
the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent or any Issuing Bank under
or in connection with any of the foregoing; provided that no Bank shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's or Issuing
Bank's, as the case may be, gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Loans, the
Reimbursement Obligations and all other amounts payable hereunder.
13.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company and any of
its Subsidiaries as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Credit Documents. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other Credit
Documents as any Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
13.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Banks; provided
that any such resignation shall not be effective until a successor agent has
been appointed and approved in accordance with this subsection 13.9, and such
successor agent has accepted its appointment. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other
Credit Documents, then the Required Banks shall appoint from among the Banks
a successor administrative agent for the Banks, which successor agent shall
be approved by the Company (which approval shall not be unreasonably withheld
or delayed or be required during the existence of an Event of Default),
whereupon such successor administrative agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
13.10 The Arranger; Syndication Agent and Documentation Agent. Each
Bank acknowledges that none of the Arranger, the Syndication Agent and the
Documentation Agent, in such respective capacity, shall have any duties or
responsibilities, or shall incur any liabilities, under this Agreement or the
other Credit Documents.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this subsection. The
Required Banks may, or, with the written consent of the Required Banks, the
Administrative Agent may, from time to time, (i) enter into with the Loan
Parties party thereto written amendments, supplements or modifications to
this Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder
or (ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend the scheduled date of maturity of any Loan or
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the aggregate amount or
extend the expiration date of any Bank's Commitment, in each case without the
consent of each Bank directly affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentage specified in
the definition of Required Banks, or consent to the assignment or transfer by
the Company of any of its rights and obligations under this Agreement and the
other Credit Documents or amend, modify or waive subsection 7.3(a) or
14.6(a), or release any Subsidiary from its Subsidiary Guarantee or release
the Company from the Company Guarantee, in each case without the written
consent of all the Banks, or (iii) amend, modify or waive any provision of
Section 13 without the written consent of the then Administrative Agent. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Banks and shall be binding upon the Company, the
Subsidiary Borrowers, the Banks, the Agents, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Company, the
Banks and the Administrative Agent shall be restored to their former position
and rights hereunder and under any other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II, III and IV may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the
Company as additional Subsidiary Borrowers upon (A) execution and delivery by
the Company, any such Subsidiary Borrower and the Administrative Agent, of a
Joinder Agreement providing for any such Subsidiary to become a Subsidiary
Borrower, and (B) delivery to the Administrative Agent of (1) if reasonably
requested by the Administrative Agent, a legal opinion in respect of such
additional Subsidiary Borrower and (2) such other documents with respect
thereto as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Subsidiary Borrower upon (A) execution and delivery by the Company of a
Schedule Amendment providing for such amendment, (b) repayment in full of all
outstanding Loans of such Subsidiary Borrower and (c) cash collateralization
of all outstanding Letters of Credit issued for the account of such
Subsidiary Borrower.
(iii) Schedule III will be amended to designate other Banks as
additional or replacement Swing Line Banks or additional Issuing Banks, upon
execution and delivery by the Company, the Administrative Agent and such
additional or replacement Swing Line Bank or additional Issuing Bank, as the
case may be, of a Schedule Amendment providing for such amendment. In the
case of any replacement of a Swing Line Bank pursuant to a Schedule
Amendment, the existing Swing Line Bank replaced pursuant thereto shall cease
to be a Swing Line Bank upon the effectiveness of such Schedule Amendment and
the repayment of all Swing Line Loans owing to such replaced Swing Line
Bank.
(iv) Schedule III will be amended to change administrative
information (including the Swing Line Rate definition) with respect to Swing
Line Banks or Issuing Banks, upon execution and delivery by the Company, the
Administrative Agent and such Swing Line Bank or Issuing Bank, as the case
may be, of a Schedule Amendment providing for such amendment.
(v) Schedule IV will be amended to change administrative
information contained therein (other than any interest rate definition,
Funding Time, Payment Time or notice time contained therein) or to add
Available Foreign Currencies (and related interest rate definitions and
administrative information), upon execution and delivery by the Company and
the Administrative Agent of a Schedule Amendment providing for such
amendment.
(vi) Schedule IV will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the Company, the Required Banks and
the Administrative Agent of a Schedule Amendment providing for such
amendment.
(vii) Schedule IV will be amended to change any interest rate
definition contained therein, upon execution and delivery by the Company, all
the Banks and the Administrative Agent of a Schedule Amendment providing for
such amendment.
(c) The Administrative Agent shall give prompt notice to each Bank
of any amendment effect pursuant to subsection 14.1(b).
(d) Notwithstanding the provisions of this subsection 14.1, any
Local Currency Facility may be amended, supplemented or otherwise modified in
accordance with its terms so long as after giving effect thereto either (i)
such Local Currency Facility ceases to be a "Local Currency Facility" and the
Company so notifies the Administrative Agent or (ii) the Local Currency
Facility continues to meet the requirements of a Local Currency Facility set
forth herein.
(e) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any Bank (an "Objecting Bank")
that refuses to consent to an amendment, supplement or waiver that both
requires the consent of all the Banks in order to become effective and is
acceptable to one or more other Banks constituting the Required Banks, and to
purchase the outstanding Loans of such Objecting Bank and such Objecting
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Objecting Bank (unless such Objecting Bank
agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Objecting Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Objecting Bank hereunder
and (ii) any amount which would be payable to such Objecting Bank pursuant to
subsection 7.8 (assuming that all Loans of such Objecting Bank were prepaid
on the date of such assumption), and upon such assumption and purchase by the
Replacement Bank, such Replacement Bank, if it is not already a Bank, shall
be deemed to be a "Bank" for purposes of this Agreement and such Objecting
Bank shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations or rights hereunder (other than any obligations
or rights which according to this Agreement shall survive the termination of
this Agreement).
14.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered by hand, or five days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Company, the
Subsidiary Borrowers and the Administrative Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the Loans:
The Company:
Arrow Electronics, Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
The Chase Manhattan Bank
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Chase Loan and Agency Services Group
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The Subsidiary Borrowers:
c/o Arrow Electronics, Inc
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
; provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Swing Line Outstandings, Notice of Swing Line
Refunding, Notice of Local Currency Outstandings, Notice of Prepayment,
Notice of Swing Line or Borrowing, or any notice pursuant to subsections 2.4,
2.5 or 5.2 shall not be effective until received.
14.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
14.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
other Credit Documents and the making of the Loans hereunder and the issuance
of Letters of Credit.
14.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent and the Arranger for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent and the Arranger,
(b) to pay or reimburse each Bank and the Administrative Agent and
any Issuing Bank for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents upon the
occurrence of an Event of Default, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent and to the several
Banks and any Issuing Bank, and (c) to pay, indemnify, and hold each Bank,
each Agent, the Arranger and the Administrative Agent and any Issuing Bank
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Credit Documents and any such other documents,
and (d) to pay, indemnify, and hold each Bank, each Agent, the Arranger and
the Administrative Agent and any Issuing Bank (and their respective
directors, officers, employees and agents) (collectively, the "indemnified
person") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Company, any
of its Subsidiaries or any of the Properties (it being understood that costs
and expenses incurred in connection with the enforcement or preservation of
rights under this Agreement and the other Credit Documents shall be paid or
reimbursed in accordance with clause (b) above rather than this clause (d))
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation hereunder
to any indemnified person with respect to indemnified liabilities arising
from (i) the gross negligence or willful misconduct of such indemnified
person or (ii) legal proceedings commenced against the Administrative Agent,
any Issuing Bank or any Bank by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such. Any payments required to be made by
the Company under this subsection 14.5 shall be made within 30 days of the
demand therefor. The agreements in this subsection shall survive repayment
of the Loans and all other amounts payable hereunder.
14.6 Successors and Assigns; Participations and Assignments. This
Agreement shall be binding upon and inure to the benefit of the Company, the
Subsidiary Borrowers, the Banks, the Administrative Agent, all future holders
of the Loans and their respective successors and assigns, except that no
Specified Borrower may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Bank.
(b) Any Bank may, without the consent of the Borrowers, in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Bank, any Commitment of
such Bank or any other interest of such Bank hereunder and under the other
Credit Documents. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank shall remain
the holder of any such Loan for all purposes under this Agreement and the
other Credit Documents, and the Company, the Subsidiary 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 other Credit Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or
waiver of any provision of any Credit Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. Each of the Company and the Subsidiary Borrowers agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Banks the proceeds thereof as provided in subsection 14.7(a) as fully as if
it were a Bank hereunder. Each of the Company and the Subsidiary Borrowers
also agrees that each Participant shall be entitled to the benefits of
subsections 7.5, 7.6 or 7.8 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Bank;
provided that, in the case of subsection 7.6, such Participant shall have
complied with the requirements of said subsection and provided, further, that
no Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Bank would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in accordance with applicable law, at any time
and from time to time assign to any Bank or any affiliate thereof or, with
the consent of the Administrative Agent and the Company (which shall not be
unreasonably withheld or delayed and provided that the consent of the Company
shall not be required for such assignment if a Default or Event of Default
pursuant to subsection 12(a) or 12(g) has occurred and is continuing at the
time of such assignment), to an additional bank, financial institution or
other entity ("an Assignee") all or any part of its rights and obligations
under this Agreement and the Loans pursuant to an Assignment and Acceptance,
executed by such Assignee, such assigning Bank and any other Person whose
consent is required pursuant to this paragraph, and delivered to the
Administrative Agent for its acceptance and recording in the Register;
provided that after giving effect to any such assignment, the transferor
Bank's aggregate Dollar Equivalent Amount of its Local Currency Bank Maximum
Borrowing Amount under all Local Currency Facilities may not exceed its
Commitment hereunder; provided further that, unless otherwise agreed by the
Company and the Administrative Agent, no such assignment to an Assignee
(other than any Bank or any affiliate thereof) shall be in an aggregate
principal amount of less than $5,000,000, except in the case of an assignment
of all of a Bank's interests under this Agreement. For purposes of the
proviso contained in the preceding sentence, the amount described therein
shall be aggregated in respect of each Bank and its affiliates, if any. Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder with a Commitment and/or Loans as set forth therein, and (y) the
assigning Bank thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under this Agreement,
such assigning Bank shall cease to be a party hereto but shall continue to be
entitled to the provisions hereunder which survive termination).
(d) The Administrative Agent shall maintain, on behalf of the
Borrowers, at its address referred to in subsection 14.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
of, and principal amount of the Loans owing hereunder to, each Bank from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any assignment of
any Loan shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank, an Assignee and any other Person whose consent is required
by Section 14.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register.
(f) The Company authorizes each Bank to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Bank's possession concerning the
Company and its Affiliates which has been delivered to such Bank by or on
behalf of the Company pursuant to this Agreement or which has been delivered
to such Bank by or on behalf of the Company in connection with such Bank's
credit evaluation of the Company and its Affiliates prior to becoming a party
to this Agreement so long as each such prospective Transferee shall execute a
confidentiality agreement containing provisions substantially similar to the
provisions contained in the next succeeding sentences of this paragraph (f).
The Administrative Agent and each Bank shall hold nonpublic information
obtained pursuant to the requirements of this Agreement other than
information (i) that is, or generally becomes, available to the public, (ii)
that was or becomes available to the Administrative Agent or any Bank on a
nonconfidential basis or (iii) that becomes available to the Administrative
Agent or any Bank from a Person or other source that is not, to the best
knowledge of the Administrative Agent or such Bank, as the case may be,
otherwise bound by a confidentiality obligation to the Company, in accordance
with its customary procedures for treatment of confidential information and
in accordance with safe and sound banking practices and in any event, may
make disclosure reasonably required by any Governmental Authority or
representative thereof pursuant to subpoena or other legal process or as
otherwise required by law, order or regulation. Unless specifically
prohibited by applicable law, regulation, rule or court order, the
Administrative Agent and each Bank shall notify the Company of any request by
any Governmental Authority or representative thereof (other than any such
request in connection with an examination of the financial condition of the
Administrative Agent or such Bank by such Governmental Authority) for
disclosure of such information by the Administrative Agent or such Bank so
that any of them may seek an appropriate protective order. Except as may be
required by an order of a court of competent jurisdiction and to the extent
set forth therein, neither the Administrative Agent nor any Bank shall be
obligated or required to return any materials furnished by the Company.
Nothing in this paragraph (f) shall prohibit the Administrative Agent or any
Bank from disclosing nonpublic information to its examiners, regulators and
professional advisors.
(g) Nothing herein shall prohibit any Bank from pledging or
assigning any Loan to any Federal Reserve Bank in accordance with applicable
law or require any Bank to obtain the consent of any Loan Party in order to
pledge or assign any Loan to any Federal Reserve Bank in accordance with
applicable law.
14.7 Adjustments; Set-off. If any Bank (a "benefitted Bank") shall at
any time receive any payment of all or part of its Loans or the Reimbursement
Obligations then due and owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-
off, pursuant to events or proceedings of the nature referred to in Section
12(g), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Bank, if any, in respect of such other
Bank's Loans or the Reimbursement Obligations then due and owing to it, or
interest thereon, such benefitted Bank shall purchase for cash from the other
Banks a participating interest in such portion of each such other Bank's Loan
or the Reimbursement Obligations owing to it, or shall provide such other
Banks with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Bank to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Banks;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. Each of the Company and the
Subsidiary Borrowers agrees that each Bank so purchasing a portion of another
Bank's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if
such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided
by law, each Bank shall have the right, without prior notice to the Company
or any Subsidiary Borrower, any such notice being expressly waived by the
Company and the Subsidiary Borrowers to the extent permitted by applicable
law, upon any amount becoming due and payable by the Company hereunder or
under this Agreement or the other Credit Documents (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Bank
or any branch or agency thereof to or for the credit or the account of the
Company or such Subsidiary Borrower, as the case may be. Each Bank agrees
promptly to notify the Company and the Administrative Agent 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.
14.8 Power of Attorney. Each Subsidiary Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact with
regard to matters relating to this Agreement, the Applications and each other
Credit Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agent and each Bank has
executed and delivered this Agreement and each other Credit Document to which
it is a party, and has performed its obligations under this Agreement and
each other Credit Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection 14.8.
The power of attorney granted by each Subsidiary Borrower hereunder is
coupled with an interest.
14.9 Judgment. If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of the Company or any Subsidiary Borrower in
respect of any sum due to any Bank or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement or the other Credit Documents (the
"Agreement Currency"), be discharged only to the extent that on the Business
Day following receipt by such Bank or the Administrative Agent (as the case
may be) of any sum adjudged to be so due in the Judgment Currency such Bank
or the Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency so purchased is less than
the sum originally due to such Bank or the Administrative Agent (as the case
may be) in the Agreement Currency, the Company or such Subsidiary Borrower
(as the case may be) agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Bank or the Administrative Agent (as the
case may be) against such loss, and if the amount of the Agreement Currency
so purchased exceeds the sum originally due to any Bank or the Administrative
Agent (as the case may be), such Bank or the Administrative Agent (as the
case may be) agrees to remit to the Company or such Subsidiary Borrower (as
the case may be) such excess.
14.10 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Company and
the Administrative Agent.
14.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
14.12 Integration. This Agreement and the other Credit Documents
represent the agreement of the Company, the Subsidiary Borrowers, the Agents,
the Administrative Agent and the Banks with respect to the subject matter
hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Bank relative to subject matter
hereof not expressly set forth or referred to herein or in the other Credit
Documents.
14.13 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
(OTHER THAN ANY LOCAL CURRENCY FACILITY) AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN
ANY LOCAL CURRENCY FACILITY) SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.14 Submission To Jurisdiction; Waivers. Each of the Company and the
Subsidiary Borrowers hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which
it is a party, or for recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to the Company at its address set forth in subsection 14.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints
the Company as its agent for service of process in any proceeding referred to
in subsection 14.14(a) and agrees that service of process in any such
proceeding may be made by mailing or delivering a copy thereof to it care of
the Company at its address for notice set forth in subsection 14.2. 14.15
Acknowledgements. Each of the Company and the Subsidiary Borrowers hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents;
(b) none of the Agents, the Administrative Agent or any
Bank has any fiduciary relationship with or duty to the Company and the
Subsidiary Borrowers arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between the Agents,
the Administrative Agent and the Banks, on one hand, and the Company and the
Subsidiary Borrowers, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Banks or among the Company and the Subsidiary
Borrowers and the Banks.
14.16 WAIVERS OF JURY TRIAL. THE COMPANY, THE SUBSIDIARY BORROWERS,
THE AGENTS, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ARROW ELECTRONICS, INC.
By:____________________________
Name
Title:
GATES/ARROW DISTRIBUTING, INC.
By:____________________________
Name
Title:
MID RANGE OPEN COMPUTING ALLIANCE,
INC.
By:____________________________
Name
Title:
ARROW DENMARK A/S
By:____________________________
Name
Title:
ARROW FINLAND OY
By:____________________________
Name
Title:
ARROW COMPONENTS SWEDEN AB
By:____________________________
Name
Title:
ARROW EUROPE GMBH
By:____________________________
Name
Title:
▇▇▇▇▇▇▇ ELECTRONIC GMBH
By:____________________________
Name
Title:
ARROW ELECTRONICS (UK) LTD.
By:____________________________
Name
Title:
ARROW NORWAY A/S
By:____________________________
Name
Title:
ARROW ELECTRONIQUE S.A.
By:____________________________
Name
Title:
ARROW COMPUTER PRODUCTS SNC
By:____________________________
Name
Title:
ARROW NORDIC COMPONENTS AB
By:____________________________
Name
Title:
MICROTRONICA UK
By:____________________________
Name
Title:
MICROTRONICA OY
By:____________________________
Name
Title:
MICROTRONICA SWEDEN AB
By:____________________________
Name
Title:
MICROTRONICA NORWAY AS
By:____________________________
Name
Title:
MICROTRONICA DENMARK AS
By:____________________________
Name
Title:
TEKELEC EUROPE S.A.
By:____________________________
Name
Title:
B.V. ARROW ELECTRONICS DLC
By:____________________________
Name
Title:
ARROW/TEXNY (H.K.) LIMITED
By:____________________________
Name
Title:
ARROW ASIA PAC LTD.
By:____________________________
Name
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, as an Agent and as a Bank
By:____________________________
Name
Title:
BANK OF AMERICA, N.A., as Syndication Agent
and as a Bank
By:
Name:
Title:
FLEET NATIONAL BANK, as Documentation
Agent and as a Bank
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Bank
By:
Name:
Title:
PARIBAS, as a Bank
By:
Name:
Title:
By:
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB, as a Bank
By:
Name:
Title:
By:
Name:
Title:
HSBC BANK USA, as a Bank
By:
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
BANCA POPOLARE DI MILANO, NEW YORK
BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
By:
Name:
Title:
By:
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By:
Name:
Title:
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
SUNTRUST BANK
By:
Name:
Title:
DEUTSCHE BANK AG
By:
Name:
Title:
By:
Name:
Title:
FIRST UNION NATIONAL BANK
By:
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
Name:
Title:
UNICREDITO ITALIANO
By:
Name:
Title:
STATE BANK OF INDIA
By:
Name:
Title: