Exhibit 10(w)
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$337,500,000
364-DAY CREDIT AGREEMENT
AMONG
AON CORPORATION,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS LC ISSUER AND AGENT,
AND
CITIBANK, N.A.,
AND
ABN AMRO BANK N.V.
AS SYNDICATION AGENTS
DATED AS OF
FEBRUARY 5, 2004
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BANC ONE CAPITAL MARKETS, INC.
SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................................................1
ARTICLE II THE CREDITS....................................................................................13
2.1. Commitment.........................................................................................13
2.2. Required Payments; Termination.....................................................................13
2.3. Ratable Loans......................................................................................13
2.4. Types of Advances..................................................................................13
2.5. Facility Fee; Utilization Fee; Term Out Fee; Reductions and Increases in Aggregate Commitment......13
2.6. Minimum Amount of Each Advance.....................................................................15
2.7. Optional Principal Payments........................................................................15
2.8. Method of Selecting Types and Interest Periods for New Advances....................................15
2.9. Conversion and Continuation of Outstanding Advances................................................16
2.10. Changes in Interest Rate, etc......................................................................16
2.11. Rates Applicable After Default.....................................................................17
2.12. Method of Payment..................................................................................17
2.13. Noteless Agreement; Evidence of Indebtedness.......................................................17
2.14. Telephonic Notices.................................................................................18
2.15. Interest Payment Dates; Interest and Fee Basis.....................................................18
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions....................19
2.17. Lending Installations..............................................................................19
2.18. Non-Receipt of Funds by the Agent..................................................................19
2.19. Facility LCs.......................................................................................20
2.20. Extension of Revolving Credit Termination Date and Facility Termination Date.......................24
2.21. Replacement of Lender..............................................................................25
ARTICLE III YIELD PROTECTION; TAXES.......................................................................25
3.1. Yield Protection...................................................................................25
3.2. Changes in Capital Adequacy Regulations............................................................26
3.3. Availability of Types of Advances..................................................................27
3.4. Funding Indemnification............................................................................27
3.5. Taxes..............................................................................................27
3.6. Lender Statements; Survival of Indemnity...........................................................29
ARTICLE IV CONDITIONS PRECEDENT...........................................................................29
4.1. Effectiveness......................................................................................29
4.2. Each Credit Extension..............................................................................31
ARTICLE V REPRESENTATIONS AND WARRANTIES..................................................................31
5.1. Corporate Existence and Standing...................................................................31
5.2. Authorization and Validity.........................................................................31
5.3. Compliance with Laws and Contracts.................................................................32
5.4. Governmental Consents..............................................................................32
5.5. Financial Statements...............................................................................32
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5.6. Material Adverse Change............................................................................33
5.7. Taxes..............................................................................................33
5.8. Litigation and Contingent Obligations..............................................................33
5.9. ERISA..............................................................................................33
5.10. Defaults...........................................................................................34
5.11. Regulation U.......................................................................................34
5.12. Investment Company; Public Utility Holding Company.................................................34
5.13. Ownership of Properties............................................................................34
5.14. Material Agreements................................................................................34
5.15. Environmental Laws.................................................................................35
5.16. Insurance..........................................................................................35
5.17. Insurance Licenses.................................................................................35
5.18. Disclosure.........................................................................................35
5.19. Reportable Transaction.............................................................................35
ARTICLE VI COVENANTS......................................................................................36
6.1. Financial Reporting................................................................................36
6.2. Use of Proceeds....................................................................................37
6.3. Notice of Default..................................................................................37
6.4. Conduct of Business................................................................................37
6.5. Taxes..............................................................................................38
6.6. Insurance..........................................................................................38
6.7. Compliance with Laws...............................................................................38
6.8. Maintenance of Properties..........................................................................38
6.9. Inspection.........................................................................................38
6.10. Capital Stock and Dividends........................................................................38
6.11. Merger.............................................................................................38
6.12. Liens..............................................................................................39
6.13. Affiliates.........................................................................................40
6.14. Change in Fiscal Year..............................................................................40
6.15. Inconsistent Agreements............................................................................40
6.16. Sale of Assets.....................................................................................40
6.17. Financial Covenants................................................................................40
6.18. ERISA..............................................................................................41
ARTICLE VII DEFAULTS......................................................................................41
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...............................................43
8.1. Acceleration; Facility LC Collateral Account.......................................................43
8.2. Amendments.........................................................................................44
8.3. Preservation of Rights.............................................................................45
ARTICLE IX GENERAL PROVISIONS.............................................................................45
9.1. Survival of Representations........................................................................45
9.2. Governmental Regulation............................................................................45
9.3. Headings...........................................................................................45
9.4. Entire Agreement...................................................................................45
9.5. Several Obligations; Benefits of this Agreement....................................................45
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9.6. Expenses; Indemnification..........................................................................46
9.7. Numbers of Documents...............................................................................46
9.8. Accounting.........................................................................................46
9.9. Severability of Provisions.........................................................................46
9.10. Nonliability of Lenders............................................................................47
9.11. Confidentiality....................................................................................47
9.12. Disclosure.........................................................................................47
9.13. USA PATRIOT ACT NOTIFICATION.......................................................................47
ARTICLE X THE AGENT.......................................................................................48
10.1. Appointment........................................................................................48
10.2. Powers.............................................................................................48
10.3. General Immunity...................................................................................48
10.4. No Responsibility for Loans, Recitals, etc.........................................................48
10.5. Action on Instructions of Lenders..................................................................49
10.6. Employment of Agents and Counsel...................................................................49
10.7. Reliance on Documents; Counsel.....................................................................49
10.8. Agent's Reimbursement and Indemnification..........................................................49
10.9. Notice of Default..................................................................................50
10.10. Rights as a Lender.................................................................................50
10.11. Lender Credit Decision.............................................................................50
10.12. Successor Agent....................................................................................50
10.13. Agent and Arranger Fees............................................................................51
10.14. Delegation to Affiliates...........................................................................51
10.15. Syndication Agents; Senior Managing Agents; Managing Agents........................................51
ARTICLE XI SETOFF; RATABLE PAYMENTS.......................................................................52
11.1. Setoff.............................................................................................52
11.2. Ratable Payments...................................................................................52
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............................................52
12.1. Successors and Assigns.............................................................................52
12.2. Participations.....................................................................................53
12.3. Assignments........................................................................................54
12.4. Dissemination of Information.......................................................................55
12.5. Tax Treatment......................................................................................56
ARTICLE XIII NOTICES......................................................................................56
13.1. Giving Notice......................................................................................56
13.2. Change of Address..................................................................................56
ARTICLE XIV COUNTERPARTS..................................................................................56
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...................................56
15.1. CHOICE OF LAW......................................................................................56
15.2. CONSENT TO JURISDICTION............................................................................57
15.3. WAIVER OF JURY TRIAL...............................................................................57
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EXHIBITS
Exhibit A Note
Exhibit B Form of Facility LC Application
Exhibit C Compliance Certificate
Exhibit D Assignment and Assumption Agreement
Exhibit E Commitment Addition Agreement
SCHEDULES
Pricing Schedule
Schedule 1 Commitments
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364-DAY CREDIT AGREEMENT
This
364-Day Credit Agreement, dated as of February 5, 2004, is among
Aon
Corporation, a Delaware corporation, the Lenders and Bank One, NA, a national
banking association having its principal office in Chicago,
Illinois, as LC
Issuer and as Agent.
R E C I T A L S:
A. The Borrower has requested the Lenders to make financial
accommodations to it in the aggregate principal amount of $337,500,000; and
B. The Lenders are willing to extend such financial accommodations on
the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Advance" means a borrowing of Loans, (a) advanced by the Lenders on the
same Borrowing Date, or (b) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of the
Lenders pursuant to ARTICLE X, and not in its individual capacity as a Lender,
and any successor Agent appointed pursuant to ARTICLE X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced or increased from time to time pursuant to the terms hereof.
The initial Aggregate Commitment is $337,500,000.
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this
364-Day Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the financial statements referred to in SECTION 5.5.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day, and (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance which, except as otherwise
provided in SECTION 2.11, bears interest at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Loan which, except as otherwise provided
in SECTION 2.11, bears interest at the Alternate Base Rate.
"Applicable Facility Fee Rate" means, at any time, the percentage
determined in accordance with the Pricing Schedule at such time. The Applicable
Facility Fee Rate shall change as and when the Borrower Debt Rating changes.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Applicable Term Out Premium Rate" means, at any time, the percentage
determined in accordance with the Pricing Schedule at such time. The Applicable
Term Out Premium Rate shall change as and when the Borrower Debt Rating changes.
"Applicable Utilization Fee Rate" means, at any time, the percentage
determined in accordance with the Pricing Schedule at such time. The Applicable
Utilization Fee Rate shall change as and when the Borrower Debt Rating changes.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation,
and its successors, in its capacity as "Sole Lead Arranger" and "Sole Book
Manager".
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Authorized Officer" means any of the president, chief financial officer,
treasurer or vice-president and controller of the Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago,
Illinois, in its individual capacity, and its
successors.
"Borrower" means
Aon Corporation, a Delaware corporation, and its
successors and assigns.
"Borrower Debt Rating" means the senior unsecured long term debt (without
third party credit enhancement) rating of the Borrower as determined by a rating
agency identified on the Pricing Schedule.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in SECTION 2.8.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (b) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago and New York for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the
Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change" is defined in SECTION 3.2.
"Change in Control" means (a) the acquisition by any Person, or two or more
Persons acting in concert, including without limitation any acquisition effected
by means of any transaction contemplated by SECTION 6.11, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting stock of the Borrower, or (b) during any period of
25 consecutive calendar months, commencing on the date of this Agreement, the
ceasing of those individuals (the "CONTINUING DIRECTORS") who (i) were directors
of the Borrower on the first day of each such period or (ii) subsequently became
directors of the Borrower and whose initial election or initial nomination for
election subsequent to that date was approved by a
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majority of the Continuing Directors then on the board of directors of the
Borrower, to constitute a majority of the board of directors of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in SECTION 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans to, and participate in Facility LCs issued upon the application of, the
Borrower in an aggregate outstanding amount not exceeding the amount set forth
opposite its name on SCHEDULE 1 hereto, as it may be modified as a result of any
assignment that has become effective pursuant to SECTION 12.3.2 or as otherwise
modified from time to time pursuant to the terms hereof.
"Condemnation" is defined in SECTION 7.8.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Consolidated EBITDA" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, MINUS, to the extent included in Consolidated Net
Income, extraordinary gains realized other than in the ordinary course of
business, all calculated for the Borrower and its Subsidiaries on a consolidated
basis.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means, at any date of determination, the
consolidated common stockholders' equity of the Borrower and its consolidated
Subsidiaries determined in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract or application for a Letter of Credit.
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"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any of
its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in SECTION 2.9.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in ARTICLE VII.
"Deficit Reduction Contribution" has the meaning set forth in Section
412(l)(2) of the Code.
"Environmental Laws" is defined in SECTION 5.15.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in SECTION 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance: (a) for
any one, two, three or six month Interest Period applicable to such Eurodollar
Advance, the applicable British Bankers' Association Interest Settlement Rate
for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, PROVIDED that, (i)
if Reuters Screen FRBD is not available to the Agent for any reason, the
applicable Eurodollar Base Rate for the relevant Interest Period shall instead
be the applicable British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available to the Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate determined by the
Agent to be the rate at which Bank One or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of Bank One's
relevant Eurodollar Loan and having a maturity equal to such Interest Period; or
(b) for any fourteen (14) day Interest Period applicable to such Eurodollar
Advance, the rate determined by the Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. dollars with
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first-class banks in the interbank market at approximately 10:00 a.m. (Chicago
time) two (2) Business Days prior to the first day of such Interest Period, in
the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
SECTION 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin for Eurodollar Advances.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing Credit Agreement" means that certain $337,500,000
364-Day Credit
Agreement dated as of February 7, 2003 among the Borrower, Bank One, as agent,
and the lenders named therein, as amended, restated, supplemented or otherwise
modified from time to time.
"Facility LC" is defined in SECTION 2.19.1.
"Facility LC Application" is defined in SECTION 2.19.3.
"Facility LC Collateral Account" is defined in SECTION 2.19.11.
"Facility Termination Date" means February 3, 2006, as such date may be
extended from time to time pursuant to SECTION 2.20, or any earlier date (a) on
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof (other than pursuant to the third sentence of
SECTION 2.1) or (b) on or after the Revolving Credit Termination Date, on which
the Revolving Credit Termination Balance and all other unpaid Obligations shall
be paid in full.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such
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day on such transactions received by the Agent from three Federal funds brokers
of recognized standing selected by the Agent in its sole discretion.
"Financial Statements" is defined in SECTION 5.5.
"Fiscal Quarter" means each of the four three-month accounting periods
comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending December 31
of each year.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Current Liability Percentage" has the meaning set forth in Section
412(l)(9)(C) of the Code.
"Governmental Authority" means any government (foreign or domestic) or any
state or other political subdivision thereof or any governmental body, agency,
authority, department or commission (including without limitation any taxing
authority or political subdivision) or any instrumentality or officer thereof
(including, without limitation, any court or tribunal and any board of
insurance, insurance department or insurance commissioner) exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any corporation, partnership or other entity directly or
indirectly owned or controlled by or subject to the control of any of the
foregoing.
"Hazardous Materials" is defined in SECTION 5.15.
"Indebtedness" of a Person means such Person's (a) obligations for borrowed
money, (b) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (c) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person, (d)
obligations which are evidenced by notes, acceptances, or similar instruments,
(e) Capitalized Lease Obligations, (f) Contingent Obligations, (g) obligations
for which such Person is obligated pursuant to or in respect of a Letter of
Credit and (h) repurchase obligations or liabilities of such Person with respect
to accounts or notes receivable sold by such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period of
fourteen (14) days or one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. An Interest Period of one,
two, three or six months shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter; PROVIDED,
HOWEVER, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business
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Day of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day; PROVIDED, HOWEVER, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"LC Fee" is defined in SECTION 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of (a)
the aggregate undrawn stated amount under all Facility LCs outstanding at such
time plus (b) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in SECTION 2.19.5.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to SECTION 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any security interest, lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant to
ARTICLE II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications and any
Notes issued pursuant to SECTION 2.13 and the other documents and agreements
contemplated hereby and executed by the Borrower in favor of the Agent, the LC
Issuer or any Lender.
"Margin Stock" has the meaning assigned to that term under Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or otherwise), performance, results of
operations, or prospects of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform its
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obligations under the Loan Documents, or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Agent, the LC Issuer
or the Lenders thereunder.
"Modified Required Lenders" means Lenders in the aggregate having at least
66 2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the Aggregate
Outstanding Credit Exposure.
"Modify" and "Modification" are defined in SECTION 2.19.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-U.S. Lender" is defined in SECTION 3.5(d).
"Note" is defined in SECTION 2.13.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Loans, all Reimbursement Obligations, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower to
the Lenders or to any Lender, the Agent, the LC Issuer or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in SECTION 3.5(b).
"Outstanding Credit Exposure" means, as to any Lender at any time, the sum
of (a) the aggregate principal amount of its Loans outstanding at such time,
plus (b) an amount equal to its pro-rata share of the LC Obligations at such
time.
"Participants" is defined in SECTION 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as defined in Section 3(2) of ERISA, as to which the Borrower or any member
of the Controlled Group may have any liability.
"Pricing Schedule" means the Schedule attached hereto identified as such.
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"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the Aggregate Outstanding
Credit Exposure.
"Purchasers" is defined in SECTION 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to depositary institutions.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks and certain other Persons for the purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System and certain other Persons.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.19 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 ET SEQ.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event; PROVIDED, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstanding
Credit Exposure.
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"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Termination Balance" means the aggregate principal amount
of Advances outstanding on the Revolving Credit Termination Date after giving
effect to any Advances made or repaid on such date.
"Revolving Credit Termination Date" means February 3, 2005 or any later
date as may be specified as the Revolving Credit Termination Date in accordance
with SECTION 2.20 or any earlier date on which the Aggregate Commitment is
reduced to zero or otherwise terminated pursuant to the terms hereof.
"Risk-Based Capital Guidelines" is defined in SECTION 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, association, joint venture, limited liability company or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (a) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries, as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the end of the quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net sales or
of the consolidated net income of the Borrower and its Subsidiaries for the
12-month period ending as of the end of the quarter next preceding the date of
determination.
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"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Termination Event" means, with respect to a Plan which is subject to Title
IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or any
other member of the Controlled Group from such Plan during a plan year in which
the Borrower or any other member of the Controlled Group was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of such
Plan as a termination under Section 4041 of ERISA, (d) the institution by the
PBGC of proceedings to terminate such Plan or (e) any event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Plan.
"Three Year Agreement" means that certain Three Year Credit Agreement dated
as of February 8, 2002 among the Borrower, Bank One, as agent, and the lenders
party thereto, as from time to time amended, restated or otherwise modified.
"Transferee" is defined in SECTION 12.4.
"Type" means, with respect to any Advance, its nature as an Alternate Base
Rate Advance or a Eurodollar Advance.
"Unfunded Current Liability" has the meaning set forth in Section
412(1)(8)(A) of the Code.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (b) any partnership, association, joint venture, limited
liability company or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise provided, all references herein to a "Wholly-Owned
Subsidiary" shall mean a Wholly-Owned Subsidiary of the Borrower.
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The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. COMMITMENT. From and including the date of this Agreement to the
Revolving Credit Termination Date, each Lender severally agrees, on the terms
and conditions set forth in this Agreement, to (a) make Loans to the Borrower
and (b) participate in Facility LCs issued upon the request of the Borrower;
PROVIDED that, after giving effect to the making of each such Loan and the
issuance of each such Facility LC, such Lender's Outstanding Credit Exposure
shall not exceed in the aggregate at any one time outstanding the amount of its
Commitment; PROVIDED, FURTHER, that Facility LCs may remain outstanding after
the Revolving Credit Termination Date, and Lenders shall participate in such
outstanding Facility LCs, in accordance with SECTION 2.19. Subject to the terms
of this Agreement, the Borrower may borrow, repay and reborrow at any time prior
to the Revolving Credit Termination Date. The Commitments to lend hereunder
shall expire on the Revolving Credit Termination Date. The LC Issuer will issue
Facility LCs hereunder on the terms and conditions set forth in Section 2.19.
Principal payments made after the Revolving Credit Termination Date may not be
reborrowed.
2.2. REQUIRED PAYMENTS; TERMINATION. The Revolving Credit Termination
Balance and all other unpaid Obligations (other than LC Obligations, the
repayment of which shall be governed by Section 2.19) shall be paid in full by
the Borrower on the Revolving Credit Termination Date; PROVIDED, HOWEVER, that
upon the written request of the Borrower, delivered to the Agent at least ten
(10) Business Days prior to the Revolving Credit Termination Date, the Revolving
Credit Termination Balance shall be due and payable on the Facility Termination
Date.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
2.4. TYPES OF ADVANCES. The Advances may be Alternate Base Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with SECTIONS 2.8 and 2.9.
2.5. FACILITY FEE; UTILIZATION FEE; TERM OUT FEE; REDUCTIONS AND
INCREASES IN AGGREGATE COMMITMENT. (a) The Borrower agrees to pay to the Agent
for the account of each Lender a facility fee at a per annum rate equal to the
Applicable Facility Fee Rate on such Lender's Commitment (or, after the
Revolving Credit Termination Date, on the principal amount of such Lender's
Outstanding Credit Exposure) from the date hereof to and including the Facility
Termination Date, payable on each Payment Date hereafter and on the Facility
Termination Date. The Borrower also agrees to pay to the Agent for the account
of each Lender a term out fee at a per annum rate equal to the Applicable Term
Out Premium Rate on the principal amount of such Lender's Loans from the
Revolving Credit Termination Date to and including the
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Facility Termination Date, payable on each Payment Date after the Revolving
Credit Termination Date and on the Facility Termination Date. The Borrower also
agrees to pay to the Agent for the ratable (based on Commitment (or after
termination of the Commitments, Outstanding Credit Exposure) amounts) account of
the Lenders a utilization fee for each day from the date hereof to and including
the later of the Facility Termination Date and the date all Loans and
Reimbursement Obligations are paid in full and all Commitments are terminated,
such utilization fee to be equal to the Applicable Utilization Fee Rate for such
day multiplied by the sum of (i) the outstanding principal amount of the Loans
on such day plus (ii) the outstanding principal amount of the LC Obligations on
such day, payable on each Payment Date and on the Facility Termination Date. The
Borrower may permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in a minimum aggregate amount of $25,000,000 or any
integral multiple of $5,000,000 in excess thereof, upon at least two (2)
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction, PROVIDED, HOWEVER, that the amount of the
Aggregate Commitment may not be reduced below the Aggregate Outstanding Credit
Exposure. All accrued facility, utilization and term out fees shall be payable
on the effective date of any termination of the obligations of the Lenders to
make or participate in Credit Extensions hereunder.
(b) Prior to the Revolving Credit Termination Date, the
Borrower may, at its option, on up to two occasions, seek to increase the
Aggregate Commitment by a minimum amount of $10,000,000 and up to an aggregate
amount of $25,000,000 (resulting in a maximum Aggregate Commitment of
$362,500,000) upon at least three (3) Business Days' prior written notice to the
Agent, which notice shall specify the amount of any such increase and shall
certify (i) that no Default or Unmatured Default has occurred and is continuing
and (ii) that each of the representations and warranties set forth in ARTICLE V
of this Agreement is true and correct on and as of such date (except to the
extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date). The Borrower may, after giving such
notice, offer the increase (which may be declined by any Lender in its sole
discretion) in the Aggregate Commitment on either a ratable basis to the Lenders
or on a non pro-rata basis to one or more Lenders and/or to other Lenders or
entities reasonably acceptable to the Agent; PROVIDED that (x) the minimum
amount of any increase for any new Lender shall be $10,000,000 and (y) after
giving effect to any increase, no Lender's Commitment shall be greater than 20%
of the Aggregate Commitment. No increase in the Aggregate Commitment shall
become effective until the existing or new Lenders extending such incremental
Commitment amount and the Borrower shall have delivered to the Agent a
Commitment Addition Agreement substantially in the form of EXHIBIT E (or in such
other form as may be reasonably satisfactory to the Agent) pursuant to which any
such existing Lender states the amount of its Commitment increase, any such new
Lender states its Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder and the Borrower accepts such
incremental Commitments. The Lenders (new or existing) shall accept an
assignment from the existing Lenders, and the existing Lenders shall make an
assignment to the new or existing Lender accepting a new or increased
Commitment, of an interest in each then outstanding Advance, Facility LC and LC
Obligation such that, after giving effect thereto, the Aggregate Outstanding
Credit Exposure hereunder is held ratably by
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the Lenders in proportion to their respective Commitments. Upon the effective
date of any such increase in the Aggregate Commitment, the retained interest or
participation of each Lender in all outstanding Facility LCs and related LC
Obligations shall be automatically adjusted to reflect each Lender's pro-rata
share of the increased Aggregate Commitment. Assignments pursuant to the
preceding sentence shall be made in exchange for the principal amount assigned
plus accrued and unpaid interest, facility fees, LC Fees and utilization fees.
The Borrower shall make any payments under SECTION 3.4 resulting from such
assignments. Any such increase of the Aggregate Commitment shall be subject to
receipt by the Agent from the Borrower of such supplemental opinions,
resolutions, certificates and other documents as the Agent may reasonably
request.
2.6. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in the
minimum amount of $25,000,000 (and in multiples of $5,000,000 if in excess
thereof); PROVIDED, HOWEVER, that (a) any Alternate Base Rate Advance may be in
the amount of the unused Aggregate Commitment and (b) in no event shall more
than six (6) Eurodollar Advances be permitted to be outstanding at any time.
2.7. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Alternate Base Rate Advances,
or, in a minimum aggregate amount of $10,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Alternate Base Rate
Advances upon notice to the Agent by 10:00 a.m. (Chicago time) one (1) Business
Day prior to the Business Day of the proposed prepayment. The Borrower may from
time to time pay, subject to the payment of any funding indemnification amounts
required by SECTION 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of an outstanding
Eurodollar Advance, upon two (2) Business Days' prior notice to the Agent.
2.8. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time;
PROVIDED, HOWEVER, that in the event Loans are incurred on the date of this
Agreement, all Loans incurred on such date shall be Alternate Base Rate
Advances. The Borrower shall give the Agent irrevocable notice (a "BORROWING
NOTICE") not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Alternate Base Rate Advance and at least three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date of such Advance, which shall be a
Business Day;
(b) the aggregate amount of such Advance;
(c) the Type of Advance selected; and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto, which shall end on or prior to the Facility
Termination Date.
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Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Chicago, to
the Agent at its address specified pursuant to ARTICLE XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Each
Alternate Base Rate Advance shall continue as an Alternate Base Rate Advance
unless and until such Alternate Base Rate Advance is converted into a Eurodollar
Advance pursuant to this SECTION 2.9 or is repaid in accordance with SECTION
2.7. Each Eurodollar Advance shall continue as a Eurodollar Advance until the
end of the then applicable Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into an Alternate Base Rate
Advance unless (x) such Eurodollar Advance is or was repaid in accordance with
SECTION 2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance
for the same or another Interest Period. Subject to the terms of SECTION 2.6,
the Borrower may elect from time to time to convert all or any part of an
Alternate Base Rate Advance into a Eurodollar Advance. The Borrower shall give
the Agent irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of an Alternate Base Rate Advance into a Eurodollar Advance or of
continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago time) on
the date of a conversion into an Alternate Base Rate Advance, or at least three
(3) Business Days, in the case of a conversion into or continuation of a
Eurodollar Advance, prior to the date of the requested conversion or
continuation, specifying:
(a) the requested date of such conversion or continuation,
which shall be a Business Day;
(b) the aggregate amount and Type of the Advance which is to
be converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Interest Period
applicable thereto, which shall end on or prior to the Facility Termination
Date.
2.10. CHANGES IN INTEREST RATE, ETC. Each Alternate Base Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a
Eurodollar Advance into an Alternate Base Rate Advance pursuant to SECTION 2.9,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to SECTION 2.9 hereof, at a rate per annum equal to the Alternate Base
Rate for such day. Changes in the rate of interest on that portion of any
Advance maintained as an Alternate Base Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the Eurodollar Rate
determined by the Agent as applicable to such Eurodollar Advance based upon the
Borrower's selections under
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SECTIONS 2.8 and 2.9 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date. The Borrower shall
select Interest Periods so that it is not necessary to repay any portion of a
Eurodollar Advance prior to the last day of the applicable Interest Period in
order to make a mandatory repayment required pursuant to SECTION 2.2.
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.8 or 2.9, no Advance may be made as, converted
into or continued as a Eurodollar Advance (except with the consent of the Agent
and the Required Lenders) when any Default or Unmatured Default has occurred and
is continuing. During the continuance of a Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of SECTION 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (a) each Eurodollar Advance shall bear interest for the remainder
of the applicable Interest Period at the Eurodollar Rate otherwise applicable to
such Interest Period plus 1% per annum, (b) each Alternate Base Rate Advance
shall bear interest at a rate per annum equal to the Alternate Base Rate in
effect from time to time plus 1% per annum and (c) the LC Fee shall be increased
by 1% per annum PROVIDED that, during the continuance of a Default under SECTION
7.6 or 7.7, the interest rates set forth in clauses (a) and (b) above and the
increase in the LC Fee set forth in clause (c) above shall be applicable to all
Credit Extensions without any election or action on the part of the Agent or any
Lender.
2.12. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
ARTICLE XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (Chicago time) on the date when
due and shall (except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders, or as otherwise
specifically required hereunder) be applied ratably by the Agent among the
Lenders. Each payment delivered to the Agent for the account of any Lender shall
be delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to ARTICLE XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the Borrower
maintained with Bank One for each payment of principal, interest, Reimbursement
Obligations and fees as it becomes due hereunder. Each reference to the Agent in
this SECTION 2.12 shall also be deemed to refer, and shall apply equally, to the
LC Issuer, in the case of payments required to be made by the Borrower to the LC
Issuer pursuant to SECTION 2.19.6.
2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (a) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect
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thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder, (iii) the
original stated amount of each Facility LC and the amount of LC Obligations
outstanding at any time and (iv) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to PARAGRAPHS (a) and (b) above shall be PRIMA FACIE evidence of the
existence and amounts of the Obligations therein recorded; PROVIDED, HOWEVER,
that the failure of the Agent or any Lender to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a
promissory note in substantially the form of EXHIBIT A (including any amendment,
modification, renewal or replacement thereof, a "NOTE"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any assignment pursuant to
SECTION 12.3) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to SECTION 12.3, except to the
extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in PARAGRAPHS (a) and (b) above. Upon receipt of an affidavit of an officer of
any Lender as to the loss, theft, destruction or mutilation of such Lender's
Note, and, in the case of any such loss, theft destruction or mutilation, upon
cancellation of such Note, the Borrower will issue, in lieu thereof, a
replacement Note in the same principal amount thereof and otherwise of like
tenor.
2.14. TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Alternate Base Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which an Alternate Base Rate Advance is prepaid, whether due to acceleration
or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Alternate Base Rate Advance converted into a
Eurodollar Advance on a day other than a Payment Date shall be payable on the
date of conversion. Interest accrued on each Eurodollar Advance shall be payable
on the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having
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an Interest Period longer than three (3) months shall also be payable on the
last day of each three-month interval during such Interest Period. Interest with
respect to Eurodollar Loans, facility fees, utilization fees, LC Fees and term
out fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest with respect to Alternate Base Rate Loans shall be calculated for
the actual days elapsed on the basis of a 365 or 366-day year, as applicable.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is made in full and received prior to
noon (Chicago time) at the place of payment. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from the LC Issuer, the Agent will notify
each Lender of the contents of each request for issuance of a Facility LC
hereunder. The Agent will notify each Lender of the Eurodollar Rate applicable
to each Eurodollar Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
ARTICLE XIII, designate replacement or additional Lending Installations through
which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be
made.
2.18. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan, or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum
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equal to (x) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day for the first three (3) days and, thereafter, the interest
rate applicable to the relevant Loan or (y) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.19. FACILITY LCS.
2.19.1. ISSUANCE. The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby letters of credit
in U.S. dollars (each, as amended, modified or extended, a "FACILITY LC")
and to renew, extend, increase, decrease or otherwise modify each Facility
LC ("MODIFY," and each such action a "MODIFICATION"), from time to time
from and including the date of this Agreement and prior to the Revolving
Credit Termination Date upon the request of and for the account of the
Borrower; PROVIDED that immediately after each such Facility LC is issued
or Modified, (a) the aggregate amount of the outstanding LC Obligations
shall not exceed $75,000,000 and (b) the Aggregate Outstanding Credit
Exposure shall not exceed the Aggregate Commitment. No Facility LC shall
have an expiry date later than the earlier of (c) one year after the date
of issuance and (d) five (5) Business Days prior to the Facility
Termination Date; PROVIDED that any Letter of Credit with a one-year tenor
may provide for the renewal thereof for additional one-year periods (which
shall in no event extend beyond the date referred to in clause (d) above).
Facility LCs shall be issued in minimum face amounts of $5,000,000 (or such
lesser amounts to which the LC Issuer may agree).
2.19.2. PARTICIPATIONS. Upon the issuance by the LC Issuer of a
Facility LC or a Modification of a Facility LC in accordance with this
SECTION 2.19, each Lender shall be deemed to have automatically and
unconditionally purchased and received from the LC Issuer an undivided
interest and participation in and to such Facility LC, the obligations of
the Borrower in respect thereof, and the liability of the LC Issuer
thereunder, in an amount equal to the face amount of such Facility LC (and
each Modification thereof) multiplied by such Lender's pro-rata share of
the Aggregate Commitment.
2.19.3. NOTICE. Subject to SECTION 2.19.1, the Borrower shall
give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least five
Business Days prior to the proposed date of issuance or Modification of
each Facility LC, specifying the beneficiary, the proposed date of issuance
(or Modification) and the expiry date of such Facility LC, and describing
the proposed terms of such Facility LC and the nature of the transactions
proposed to be supported thereby. Upon receipt of such notice, the LC
Issuer shall promptly notify the Agent, and the Agent shall promptly notify
each Lender, of the contents thereof and of the amount of such Lender's
participation in such proposed Facility LC. The issuance or Modification by
the LC Issuer of any Facility LC shall, in addition to the conditions
precedent set forth in Article IV (the satisfaction of which the LC Issuer
shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have executed and delivered to the LC Issuer a completed
standby Letter of Credit application substantially in the form of Exhibit B
hereto (or such other form as the LC Issuer shall have reasonably requested
(each, a "FACILITY LC APPLICATION")). In the event of any
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conflict between the terms of this Agreement and the terms of any Facility
LC Application, the terms of this Agreement shall control.
2.19.4. LC FEES. The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective pro-rata
shares of the Aggregate Commitment with respect to each Facility LC, a
letter of credit fee at a per annum rate equal to the Applicable Margin for
Eurodollar Advances on the average undrawn stated amount of such Facility
LC, such fee to be payable in arrears on each Payment Date to the Agent for
the benefit of the Lenders (including the LC Issuer) ratably (such fee
described in this sentence an "LC FEE"). The Borrower shall also pay to the
LC Issuer for its own account (a) a fronting fee in an amount agreed upon
by the Borrower and the LC Issuer payable in arrears on each Payment Date
and (b) documentary and processing charges in connection with the issuance
or Modification of and draws under Facility LCs in accordance with the LC
Issuer's standard schedule for such charges as in effect from time to time.
2.19.5. ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Agent and the Agent shall
promptly notify the Borrower and each other Lender as to the amount to be
paid by the LC Issuer as a result of such demand and the proposed payment
date (the "LC PAYMENT DATE"). The responsibility of the LC Issuer to the
Borrower and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material
respects with such Facility LC. The LC Issuer shall endeavor to exercise
the same care in the issuance and administration of the Facility LCs as it
does with respect to Letters of Credit in which no participations are
granted, it being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally
and irrevocably liable without regard to the occurrence of any Default or
any condition precedent whatsoever, to reimburse the LC Issuer on demand
for (a) such Lender's pro-rata share of the amount of each payment made by
the LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to SECTION 2.19.6 below, plus (b)
interest on the foregoing amount to be reimbursed by such Lender, for each
day from the date of the LC Issuer's demand for such reimbursement (or, if
such demand is made after 11:00 a.m. (Chicago time) on such date, from the
next succeeding Business Day) to the date on which such Lender pays the
amount to be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Alternate Base Rate Loans.
2.19.6. REIMBURSEMENT BY BORROWER. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on or
before the applicable LC Payment Date for any amounts paid or to be paid by
the LC Issuer upon any drawing under any Facility LC, without presentment,
demand, protest or other formalities of any
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kind; PROVIDED that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential)
damages suffered by the Borrower or such Lender to the extent, but only to
the extent, caused by (a) the willful misconduct or gross negligence of the
LC Issuer in determining whether a request presented under any Facility LC
issued by it complied with the terms of such Facility LC or (b) the LC
Issuer's failure to pay under any Facility LC issued by it after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. All such amounts paid by the LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Alternate Base
Rate plus 1%. The LC Issuer will pay to each Lender ratably in accordance
with its pro-rata share all amounts received by it from the Borrower for
application in payment, in whole or in part, of the Reimbursement
Obligation in respect of any Facility LC issued by the LC Issuer, but only
to the extent such Lender has made payment to the LC Issuer in respect of
such Facility LC pursuant to SECTION 2.19.5. Subject to the terms and
conditions of this Agreement (including without limitation the submission
of a Borrowing Notice in compliance with Section 2.8 and the satisfaction
of the applicable conditions precedent set forth in Article IV), the
Borrower may request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
2.19.7. OBLIGATIONS ABSOLUTE. The Borrower's obligations under
this Section 2.19 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the LC Issuer, any
Lender or any beneficiary of a Facility LC. The Borrower further agrees
with the LC Issuer and the Lenders that the LC Issuer and the Lenders shall
not be responsible for, and the Borrower's Reimbursement Obligation in
respect of any Facility LC shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the
Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any
of its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not 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 Facility LC. The
Borrower agrees that any action taken or omitted by the LC Issuer or any
Lender under or in connection with each Facility LC and the related drafts
and documents, if done without gross negligence or willful misconduct,
shall be binding upon the Borrower and shall not put the LC Issuer or any
Lender under any liability to the Borrower. Nothing in this SECTION 2.19.7
is intended to limit the right of the Borrower to make a claim against the
LC Issuer for damages as contemplated by the proviso to the first sentence
of SECTION 2.19.6.
2.19.8. ACTIONS OF LC ISSUER. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype
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message, statement, order or other document 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, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or
it shall first be indemnified to its reasonable satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Notwithstanding any
other provision of this SECTION 2.19, the LC Issuer shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon the Lenders and any future holders of a participation in any
Facility LC.
2.19.9. INDEMNIFICATION. The Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the Agent, and
their respective directors, officers, agents and employees from and against
any and all claims and damages, losses, liabilities, costs or expenses
which such Lender, the LC Issuer or the Agent may incur (or which may be
claimed against such Lender, the LC Issuer or the Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution and
delivery or transfer of or payment or failure to pay under any Facility LC
or any actual or proposed use of any Facility LC, including, without
limitation, any claims, damages, losses, liabilities, costs or expenses
which the LC Issuer may incur on account of the LC Issuer issuing any
Facility LC which specifies that the term "Beneficiary" included therein
includes any successor by operation of law of the named Beneficiary, but
which Facility LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document, satisfactory to
the LC Issuer, evidencing the appointment of such successor Beneficiary;
PROVIDED that the Borrower shall not be required to indemnify any Lender,
the LC Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x) the
willful misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC complied with the terms
of such Facility LC or (y) the LC Issuer's failure to pay under any
Facility LC after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. Nothing in this SECTION
2.19.9 is intended to limit the obligations of the Borrower under any other
provision of this Agreement.
2.19.10. LENDERS' INDEMNIFICATION. Each Lender shall, ratably in
accordance with its pro-rata share, indemnify the LC Issuer, its affiliates
and their respective directors, officers, agents and employees (to the
extent not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross negligence or
willful misconduct or the LC Issuer's failure to pay under any Facility LC
after the presentation to it of a request strictly complying with the terms
and conditions of the
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Facility LC) that such indemnitees may suffer or incur in connection with
this SECTION 2.19 or any action taken or omitted by such indemnitees
hereunder.
2.19.11. FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees
that it will, upon the request of the Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as long
as any amount is payable to the LC Issuer or the Lenders in respect of any
Facility LC, maintain a special collateral account pursuant to arrangements
satisfactory to the Agent (the "FACILITY LC COLLATERAL ACCOUNT") at the
Agent's office at the address specified pursuant to Article XIII, in the
name of such Borrower but under the sole dominion and control of the Agent,
for the benefit of the Lenders and in which such Borrower shall have no
interest other than as set forth in SECTION 8.1. The Borrower hereby
pledges, assigns and grants to the Agent, on behalf of and for the ratable
benefit of the Lenders and the LC Issuer, a security interest in all of the
Borrower's right, title and interest in and to all funds which may from
time to time be on deposit in the Facility LC Collateral Account to secure
the prompt and complete payment and performance of the Reimbursement
Obligations. The Agent will invest any funds on deposit from time to time
in the Facility LC Collateral Account in certificates of deposit of Bank
One having a maturity not exceeding 30 days. Nothing in this SECTION
2.19.11 shall either obligate the Borrower to deposit any funds in the
Facility LC Collateral Account, obligate the Agent to require the Borrower
to deposit any funds in the Facility LC Collateral Account or limit the
right of the Agent to release any funds held in the Facility LC Collateral
Account in each case other than as required by SECTION 8.1.
2.19.12. RIGHTS AS A LENDER. In its capacity as a Lender, the LC
Issuer shall have the same rights and obligations as any other Lender.
2.20. EXTENSION OF REVOLVING CREDIT TERMINATION DATE AND FACILITY
TERMINATION DATE. The Borrower may request an extension of the Revolving Credit
Termination Date and Facility Termination Date by submitting a request for an
extension to the Agent (an "EXTENSION REQUEST") no more than sixty (60) days
prior to the then effective Revolving Credit Termination Date. The Extension
Request must specify the new Revolving Credit Termination Date and Facility
Termination Date requested by the Borrower and the date (which must be at least
thirty (30) days after the Extension Request is delivered to the Agent) as of
which the Lenders must respond to the Extension Request (the "RESPONSE DATE").
The new Revolving Credit Termination Date shall be no more than 364 days after
the Revolving Credit Termination Date in effect at the time the Extension
Request is received, including the current Revolving Credit Termination Date as
one of the days in the calculation of the days elapsed and the new Facility
Termination Date shall be one (1) year after the new Revolving Credit
Termination Date. Promptly upon receipt of an Extension Request, the Agent shall
notify each Lender of the contents thereof and shall request each Lender to
approve the Extension Request. Each Lender may, in its sole discretion, elect to
approve or deny such Extension Request. Failure of a Lender to respond to an
Extension Request by the Response Date shall be deemed a refusal to approve such
Extension Request. Each Lender approving the Extension Request shall deliver its
written consent no later than the Response Date. If the consent of each of the
Lenders is received by the
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Agent, the Revolving Credit Termination Date and Facility Termination Date
specified in the Extension Request shall become effective on the existing
Revolving Credit Termination Date and the Agent shall promptly notify the
Borrower and each Lender of the new Revolving Credit Termination Date and
Facility Termination Date. In the event that a consent is not received from each
of the Lenders, then there shall be no extension of the existing Revolving
Credit Termination Date and Facility Termination Date.
2.21. REPLACEMENT OF LENDER. If the Borrower is required pursuant to
SECTION 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Alternate Base Rate
Advances into, Eurodollar Advances shall be suspended pursuant to SECTION 3.3
(any Lender so affected an "AFFECTED LENDER"), the Borrower may elect, if such
amounts continue to be charged or such suspension is still effective, to replace
such Affected Lender as a Lender party to this Agreement, PROVIDED that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such replacement, and PROVIDED FURTHER that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Borrower and the Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of EXHIBIT C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
SECTION 12.3 applicable to assignments, and (ii) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by the Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under SECTIONS 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under SECTION 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(a) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender or the LC
Issuer in respect of its Eurodollar Loans, Facility LCs or participations
therein, or
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(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation or the LC
Issuer of making, funding or maintaining its Eurodollar Loans, or of issuing or
participating in Facility LCs, or reduces any amount receivable by any Lender or
any applicable Lending Installation or the LC Issuer in connection with its
Eurodollar Loans, Facility LCs or participations therein, or requires any Lender
or any applicable Lending Installation or the LC Issuer to make any payment
calculated by reference to the amount of Eurodollar Loans, Facility LCs or
participations therein, held or interest or LC Fees received by it, by an amount
deemed material by such Lender or the LC Issuer, as the case may be.
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein, then,
within fifteen (15) days of demand by such Lender or the LC Issuer, as the case
may be, the Borrower shall pay such Lender or the LC Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the LC
Issuer, as the case may be, for such increased cost or reduction in amount
received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within fifteen (15) days of demand by such Lender
or the LC Issuer, the Borrower shall pay such Lender or the LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or the LC Issuer determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Loans and issue or participate in Facility LCs, as the case
may be, hereunder (after taking into account such Lender's or the LC Issuer's
policies as to capital adequacy). "CHANGE" means (a) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (b) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any Person controlling any Lender or the LC Issuer.
"RISK-BASED CAPITAL GUIDELINES" means (a) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (b) the corresponding capital regulations promulgated by regulatory
authorities outside the United States
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implementing the July 1988 report of the Basel Committee on Banking Regulation
and Supervisory Practices entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, interpretation or directive,
whether or not having the force of law, or if the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (b) the interest rate applicable to Eurodollar
Advances does not accurately or fairly reflect the cost of making or maintaining
Eurodollar Advances, then the Agent shall suspend the availability of Eurodollar
Advances and require any affected Eurodollar Advances to be repaid or converted
to Alternate Base Rate Advances, subject to the payment of any funding
indemnification amounts required by SECTION 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar Advance
occurs on a date prior to the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5. TAXES. (a) All payments by the Borrower to or for the account of
any Lender, the LC Issuer or the Agent hereunder or under any Note or Facility
LC Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this SECTION 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions, (iii)
the Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within thirty (30)
days after such payment is made.
(b) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under any Note, Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("OTHER TAXES").
(c) The Borrower hereby agrees to indemnify the Agent, the LC
Issuer and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this SECTION 3.5) paid by the Agent, the
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LC Issuer or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within thirty (30) days of the date the Agent, the
LC Issuer or such Lender makes demand therefor pursuant to SECTION 3.6.
(d) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "NON-U.S. LENDER")
agrees that it will, not more than ten (10) Business Days after the date of this
Agreement, (i) deliver to each of the Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI,
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrower and the Agent a United
States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it
is entitled to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes, to the extent lawful at such time, to
deliver to each of the Borrower and the Agent (x) renewals or additional copies
of such form (or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of any event requiring
a change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the Agent.
All forms or amendments described in the preceding sentence shall certify that
such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, UNLESS 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
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(e) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to CLAUSE (d), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this SECTION 3.5 with respect to Taxes imposed by the
United States; PROVIDED that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under CLAUSE (d), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrower (with a copy to the Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
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(g) If the U.S. Internal Revenue Service or any other
Governmental Authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason not caused by or
constituting gross negligence or willful misconduct of the Agent), such Lender
shall indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all reasonable costs and expenses
related thereto (including reasonable attorneys fees and reasonable time charges
of attorneys for the Agent, which attorneys may be employees of the Agent). The
obligations of the Lenders under this SECTION 3.5(g) shall survive the payment
of the Obligations and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under SECTIONS 3.1, 3.2 and 3.5 or to avoid the
unavailability of Eurodollar Advances under SECTION 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Agent) as to the amount due, if any, under SECTION
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of manifest
error. The Borrower shall have no obligation to reimburse, compensate or
indemnify any Lender with respect to a claim under this ARTICLE III if the
Lender fails to deliver such written statement within 180 days after the date on
which the Lender becomes aware of the event or occurrence giving rise to such
claim. Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under SECTIONS 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS. This Agreement shall not become effective unless
and until the Borrower has furnished the following to the Agent with sufficient
copies for the Lenders and the other conditions set forth below have been
satisfied:
(a) CHARTER DOCUMENTS; GOOD STANDING CERTIFICATES. Copies of
the certificate of incorporation of the Borrower, together with all amendments
thereto, both certified by the appropriate governmental officer in its
jurisdiction of incorporation, together with a good
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standing certificate issued by the Secretary of State of the jurisdiction of its
incorporation and such other jurisdictions as shall be requested by the Agent as
well as any other information required by Section 326 of the USA PATRIOT ACT or
necessary for the Agent or any Lender to verify the identity of Borrower as
required by Section 326 of the USA PATRIOT ACT.
(b) BY-LAWS AND RESOLUTIONS. Copies, certified by the
Secretary or Assistant Secretary of the Borrower, of its by-laws and of its
Board of Directors' resolutions authorizing the execution, delivery and
performance of the Loan Documents by the Borrower.
(c) SECRETARY'S CERTIFICATE. An incumbency certificate,
executed by the Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signature of the officers of the
Borrower authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(d) OFFICER'S CERTIFICATE. A certificate, dated the date of
this Agreement, signed by an Authorized Officer of the Borrower, in form and
substance satisfactory to the Agent, to the effect that: (i) on such date (both
before and after giving effect to the making of any Credit Extension hereunder
on such date) no Default or Unmatured Default has occurred and is continuing;
(ii) each of the representations and warranties set forth in ARTICLE V of this
Agreement is true and correct on and as of such date; and (iii) since December
31, 2002 no event or change has occurred that has caused or evidences a Material
Adverse Effect.
(e) LEGAL OPINIONS. Written opinions of internal counsel to
the Borrower and of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Borrower, addressed to the Agent and the Lenders in form and substance
acceptable to the Agent and its counsel.
(f) NOTES. Any Notes requested by a Lender pursuant to
SECTION 2.13 payable to the order of each such requesting Lender.
(g) LOAN DOCUMENTS. Executed originals of this Agreement and
each of the Loan Documents, which shall be in full force and effect, together
with all schedules, exhibits, certificates, instruments, opinions, documents and
financial statements required to be delivered pursuant hereto and thereto.
(h) LETTERS OF DIRECTION. Written money transfer instructions
in form and substance acceptable to the Agent and its counsel addressed to the
Agent and signed by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have reasonably requested.
(i) PAYMENT OF FEES. The Borrower shall have paid all fees
due to Bank One under the fee letter dated December 18, 2003.
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(j) EXISTING CREDIT AGREEMENT. The Existing Credit Agreement
shall have expired or been terminated and all amounts owing thereunder
(including all principal, interest and accrued fees) shall have been paid (or
shall contemporaneously be paid) in full.
(k) OTHER. Such other documents as the Agent, any Lender, the
LC Issuer or their counsel may have reasonably requested.
4.2. EACH CREDIT EXTENSION. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
(a) There exists no Default or Unmatured Default and none
would result from such Credit Extension;
(b) The representations and warranties contained in ARTICLE V
(other than SECTION 5.6) are true and correct as of such Credit Extension Date;
(c) A Borrowing Notice or request for Facility LC issuance or
Modification shall have been properly submitted; and
(d) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or request for issuance of a Facility LC with respect
to each such Credit Extension shall constitute a representation and warranty by
the Borrower that the conditions contained in SECTION 4.2 have been satisfied.
Any Lender may require a duly completed compliance certificate in substantially
the form of EXHIBIT C hereto as a condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. CORPORATE EXISTENCE AND STANDING. Each of the Borrower and its
Subsidiaries is a corporation duly and properly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
duly qualified and in good standing as a foreign corporation and is duly
authorized to conduct its business in each jurisdiction in which its business is
conducted or proposed to be conducted except where failure to be so qualified or
authorized could not reasonably be expected to have a Material Adverse Effect.
5.2. AUTHORIZATION AND VALIDITY. The Borrower has all requisite power
and authority (corporate and otherwise) and legal right to execute and deliver
each of the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance
of its obligations thereunder have been duly authorized by proper corporate
proceedings and the Loan Documents constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower, in accordance with
their terms,
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except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
5.3. COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower and its
Subsidiaries have complied in all material respects with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or the ownership of their respective
properties, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect. Neither the execution and delivery
by the Borrower of the Loan Documents, the application of the proceeds of the
Loans, or any other transaction contemplated in the Loan Documents, nor
compliance with the provisions of the Loan Documents will, or at the relevant
time did, (a) violate any law, rule, regulation (including Regulation U), order,
writ, judgment, injunction, decree or award binding on the Borrower or any
Subsidiary or the Borrower's or any Subsidiary's charter, articles or
certificate of incorporation or by-laws, (b) violate the provisions of or
require the approval or consent of any party to any indenture, instrument or
agreement to which the Borrower or any Subsidiary is a party or is subject, or
by which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien (other than
Liens permitted by the Loan Documents) in, of or on the property of the Borrower
or any Subsidiary pursuant to the terms of any such indenture, instrument or
agreement, or (c) require any consent of the stockholders of any Person, except
for any violation of, or failure to obtain an approval or consent required
under, any such indenture, instrument or agreement that could not reasonably be
expected to have a Material Adverse Effect.
5.4. GOVERNMENTAL CONSENTS. No order, consent, approval,
qualification, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of, any court,
governmental or public body or authority, or any subdivision thereof, any
securities exchange or other Person is or at the relevant time was required to
authorize, or is or at the relevant time was required in connection with the
execution, delivery, consummation or performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents, the application
of the proceeds of the Loans or any other transactions contemplated in the Loan
Documents. Neither the Borrower nor any Subsidiary is in default under or in
violation of any foreign, federal, state or local law, rule, regulation, order,
writ, judgment, injunction, decree or award binding upon or applicable to the
Borrower or such Subsidiary, in each case the consequence of which default or
violation could reasonably be expected to have a Material Adverse Effect.
5.5. FINANCIAL STATEMENTS. The Borrower has heretofore furnished to
each of the Lenders (a) the December 31, 2002 audited consolidated financial
statements of the Borrower and its Subsidiaries, and (b) the unaudited
consolidated financial statements of the Borrower and its Subsidiaries through
September 30, 2003 (collectively, the "FINANCIAL STATEMENTS"). Each of the
Financial Statements was prepared in accordance with Agreement Accounting
Principles and fairly presents the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations for the respective
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periods then ended (except, in the case of such unaudited statements, for normal
year-end audit adjustments).
5.6. MATERIAL ADVERSE CHANGE. Since December 31, 2002, there has been
no change in the business, Property, condition (financial or otherwise),
performance, prospects or results of operations of the Borrower and its
Subsidiaries taken as a whole which could reasonably be expected to have a
Material Adverse Effect.
5.7. TAXES. The Borrower and its Subsidiaries have filed or caused to
be filed on a timely basis and in correct form all United States federal, state
and other material tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by the
Borrower or any Subsidiary, except such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien exists. As of the
date hereof, the United States income tax returns of the Borrower on a
consolidated basis have been audited by the Internal Revenue Service through its
Fiscal Year ending December 31, 1997. No tax liens have been filed and no claims
are being asserted with respect to any such taxes which could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of any taxes or
other governmental charges are in accordance with Agreement Accounting
Principles.
5.8. LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, proceeding, inquiry or governmental investigation (including,
without limitation, by the Federal Trade Commission) pending or, to the
knowledge of any of their officers, threatened against or affecting the Borrower
or any Subsidiary or any of their respective Properties that could reasonably be
expected to have a Material Adverse Effect or to prevent, enjoin or unduly delay
the making of any Credit Extensions under this Agreement.
5.9. ERISA. The Funded Current Liability Percentage of each Single
Employer Plan for the current plan year is at least eighty percent (80%).
Neither the Borrower nor any other member of the Controlled Group maintains, or
is obligated to contribute to, any Multiemployer Plan or has incurred, or is
reasonably expected to incur, any withdrawal liability to any Multiemployer
Plan. Each Plan complies in all material respects with all applicable
requirements of law and regulations. Neither the Borrower nor any member of the
Controlled Group has, with respect to any Plan, failed to make any contribution
or pay any amount required under Section 412 of the Code or Section 302 of ERISA
or the terms of such Plan which could reasonably be expected to have a Material
Adverse Effect. There are no pending or, to the knowledge of the Borrower,
threatened claims, actions, investigations or lawsuits against any Plan, any
fiduciary thereof, or the Borrower or any member of the Controlled Group with
respect to a Plan which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any member of the Controlled Group has engaged
in any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) in connection with any Plan which would subject such Person to any
material liability. Within the last five (5) years neither the Borrower nor any
member of the Controlled Group has engaged in a transaction which resulted in a
Single Employer Plan with an Unfunded Liability being transferred out of the
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Controlled Group which could reasonably be expected to have a Material Adverse
Effect. No Termination Event has occurred or is reasonably expected to occur
with respect to any Plan which is subject to Title IV of ERISA which could
reasonably be expected to have a Material Adverse Effect.
5.10. DEFAULTS. No Default or Unmatured Default has occurred and is
continuing.
5.11. REGULATION U. Margin Stock constitutes less than 25% of those
assets of the Borrower and its Subsidiaries which are subject to any limitation
on sale, pledge or other restriction hereunder. Neither the Borrower nor any
Subsidiary is engaged, directly or indirectly, principally, or as one of its
important activities, in the business of extending, or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan will be used in a manner which would violate,
or result in a violation of, Regulation U. Neither the making of any Advance
hereunder nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation U.
5.12. INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. Neither the
Borrower nor any Subsidiary is, or after giving effect to any Advance will be,
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 Borrower nor any Subsidiary is a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
5.13. OWNERSHIP OF PROPERTIES. As of the date of this Agreement, the
Borrower and its Subsidiaries have a subsisting leasehold interest in, or good
and marketable title, free of all Liens, other than those permitted by SECTION
6.12 or by any of the other Loan Documents, to all of the properties and assets
reflected in the Financial Statements as being owned by it, except for assets
sold, transferred or otherwise disposed of in the ordinary course of business
since the date thereof. The Borrower and its Subsidiaries own or possess rights
to use all licenses, patents, patent applications, copyrights, service marks,
trademarks and trade names necessary to continue to conduct their business as
heretofore conducted, and no such license, patent or trademark has been declared
invalid, been limited by order of any court or by agreement or is the subject of
any infringement, interference or similar proceeding or challenge, except for
proceedings and challenges which could not reasonably be expected to have a
Material Adverse Effect.
5.14. MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect or which restricts or imposes conditions upon the ability of any
Subsidiary to (a) pay dividends or make other distributions on its capital
stock, (b) make loans or advances to the Borrower or (c) repay loans or advances
from the Borrower. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
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5.15. ENVIRONMENTAL LAWS. There are no claims, investigations,
litigation, administrative proceedings, notices, requests for information,
whether pending or threatened, or judgments or orders asserting violations of
applicable federal, state and local environmental, health and safety statutes,
regulations, ordinances, codes, rules, orders, decrees, directives and standards
("ENVIRONMENTAL LAWS") or relating to any toxic or hazardous waste, substance or
chemical or any pollutant, contaminant, chemical or other substance defined or
regulated pursuant to any Environmental Law, including, without limitation,
asbestos, petroleum, crude oil or any fraction thereof ("HAZARDOUS MATERIALS")
asserted against the Borrower or any of its Subsidiaries which, in any case,
could reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary has caused or permitted any Hazardous Materials to
be released, either on or under real property, currently or formerly, legally or
beneficially owned or operated by the Borrower or any Subsidiary or on or under
real property to which the Borrower or any of its Subsidiaries transported,
arranged for the transport or disposal of, or disposed of Hazardous Materials,
which release could reasonably be expected to have a Material Adverse Effect.
5.16. INSURANCE. The Borrower and its Subsidiaries maintain, with
financially sound and reputable insurance companies, insurance on their Property
in such amounts and covering such risks as is consistent with sound business
practice.
5.17. INSURANCE LICENSES. No material license, permit or authorization
of the Borrower or any Subsidiary to engage in the business of insurance or
insurance-related activities is the subject of a proceeding for suspension or
revocation, except where such suspension or revocation would not individually or
in the aggregate have a Material Adverse Effect.
5.18. DISCLOSURE. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of the Loan Documents, or (b)
representations or warranties of the Borrower or any Subsidiary contained in
this Agreement, the other Loan Documents, or any other document, certificate or
written statement furnished to the Agent or the Lenders by or on behalf of the
Borrower or any Subsidiary for use in connection with the transactions
contemplated by this Agreement, as the case may be, contained, contains or will
contain any untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made. As of the date hereof, there is no fact known to the Borrower (other
than matters of a general economic nature) that has had or could reasonably be
expected to have a Material Adverse Effect and that has not been disclosed
herein or in such other documents, certificates and statements furnished to the
Lenders for use in connection with the transactions contemplated by this
Agreement.
5.19. REPORTABLE TRANSACTION. The Borrower does not intend to treat the
Credit Extensions and related transactions as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In the event the
Borrower determines to take any action inconsistent with such intention, it will
promptly notify the Agent thereof. The Borrower acknowledges that one or more of
the Lenders may treat its Credit Extensions as part of a
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transaction that is subject to Treasury Regulation Section 1.6011-4 or Section
301.6112-1, and the Agent and such Lender or Lenders, as applicable, may file
such IRS forms or maintain such lists and other records as they may determine is
required by such Treasury Regulations.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, consistently applied,
and will furnish to the Lenders:
(a) As soon as practicable and in any event within ninety
(90) days after the close of each of its Fiscal Years, an unqualified audit
report certified by independent certified public accountants, acceptable to the
Lenders, prepared in accordance with Agreement Accounting Principles on a
consolidated basis for itself and its Subsidiaries, including balance sheets as
of the end of such period and related statements of income, retained earnings
and cash flows accompanied by (i) any management letter prepared by said
accountants and (ii) a certificate of said accountants that, in the course of
their examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if, in the opinion
of such accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(b) As soon as practicable and in any event within 45 days
after the close of the first three Fiscal Quarters of each of its Fiscal Years,
for itself and its Subsidiaries, consolidated unaudited balance sheets as at the
close of each such period and consolidated statements of income, retained
earnings and cash flows for the period from the beginning of such Fiscal Year to
the end of such quarter, all certified by its president or chief financial
officer.
(c) Together with the financial statements required by
CLAUSES (a) and (b) above, a compliance certificate in substantially the form of
EXHIBIT B hereto signed by its president or chief financial officer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(d) Promptly upon learning thereof, notice that the Borrower
or any Subsidiary will be required to make a Deficit Reduction Contribution for
any Single Employer Plan for any Fiscal Year, and within 270 days after the
close of each Fiscal Year, a statement of the Funded Current Liability
Percentage of each Single Employer Plan, certified as correct by an actuary
enrolled under ERISA.
(e) As soon as possible and in any event within ten (10) days
after the Borrower knows that any Termination Event has occurred with respect to
any Plan, a statement,
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signed by the chief financial officer of the Borrower, describing said
Termination Event and the action which the Borrower proposes to take with
respect thereto.
(f) As soon as possible and in any event within ten (10) days
after the Borrower learns thereof, notice of the assertion or commencement of
any claims, action, suit or proceeding against or affecting the Company or any
Subsidiary which may reasonably be expected to have a Material Adverse Effect.
(g) Promptly upon learning thereof, notice of any change in
the credit rating of the Borrower's senior unsecured long term debt by S&P or
▇▇▇▇▇'▇.
(h) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(i) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(j) Such other information (including, without limitation,
non-financial information) as the Agent or any Lender may from time to time
reasonably request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions to meet the general
corporate needs of the Borrower and its Subsidiaries, including commercial paper
support. The Borrower will not, nor will it permit any Subsidiary to, use any of
the proceeds of the Advances to purchase or carry any "margin stock" (as defined
in Regulation U) or to finance the acquisition of any Person which has not been
approved and recommended by the board of directors (or functional equivalent
thereof) of such Person.
6.3. NOTICE OF DEFAULT. The Borrower will give prompt notice in
writing to the Lenders of the occurrence of (a) any Default or Unmatured Default
and (b) of any other event or development, financial or other, relating
specifically to the Borrower or any of its Subsidiaries (and not of a general
economic or political nature) which could reasonably be expected to have a
Material Adverse Effect.
6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and to do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted; PROVIDED, HOWEVER, that
nothing in this SECTION 6.4 shall prohibit the dissolution or sale, transfer or
other disposition of any Subsidiary that is not otherwise prohibited by this
Agreement.
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6.5. TAXES. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by applicable law and pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
6.6. INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to the Agent and any
Lender upon request full information as to the insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate. The Borrower will
keep or cause to be kept, and cause each Subsidiary to keep or cause to be kept,
appropriate records and books of account in which complete entries are to be
made reflecting its and their business and financial transactions, such entries
to be made in accordance with Agreement Accounting Principles consistently
applied.
6.10. CAPITAL STOCK AND DIVIDENDS. So long as any Default or Unmatured
Default has occurred and is continuing before or immediately after giving effect
thereto, the Borrower will not declare or pay any dividends or make any
distributions on its capital stock (other than dividends payable in its own
capital stock) or redeem, repurchase or otherwise acquire or retire any of its
capital stock or any options or other rights in respect thereof at any time
outstanding.
6.11. MERGER. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (a) a
Wholly-Owned Subsidiary may merge into the Borrower or any Wholly-Owned
Subsidiary of the Borrower, (b) the Borrower or any Subsidiary may merge or
consolidate with any other Person so long as the Borrower or such Subsidiary is
the continuing or surviving corporation and, prior to and after giving effect to
such
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merger or consolidation, no Default or Unmatured Default shall exist, and (c)
any Subsidiary may enter into a merger or consolidation as a means of effecting
a disposition or acquisition which would not result in a Default or Unmatured
Default.
6.12. LIENS. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than sixty (60) days
past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(e) Encumbrances over and limited to the balance of credit
balances on bank accounts of the Borrower and its Subsidiaries created in order
to facilitate the operation of such bank accounts and other bank accounts of the
Borrower and its Subsidiaries on a net balance basis with credit balances and
debit balances on the various accounts being netted off for interest purposes;
(f) Any Lien arising by operation of law in the ordinary
course of trading in respect of any obligation which is less than sixty (60)
days overdue or which is being contested in good faith and by appropriate means
and for which adequate reserves have been made;
(g) Encumbrances created by any of the Borrower or its
Subsidiaries over deposits and investments in the ordinary course of such
Person's insurance and reinsurance trade to comply with the requirements of any
regulatory body of insurance or insurance broking business; and
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(h) Other Liens securing an aggregate principal amount of
obligations at no time exceeding an amount equal to ten percent (10%) of
Consolidated Net Worth at such time; PROVIDED, HOWEVER that during any period
when the sum of (i) the aggregate principal amount of all obligations secured
pursuant to this SECTION 6.12(h) plus (ii) the aggregate Unfunded Current
Liabilities of all Single Employer Plans exceeds ten percent (10%) of
Consolidated Net Worth, the creation of additional Liens otherwise allowed
hereunder shall be permitted by this SECTION 6.12(h) only to the extent they
secure an aggregate principal amount of obligations not in excess of one percent
(1%) of Consolidated Net Worth.
6.13. AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (a) for transactions between the Borrower and
any Wholly-Owned Subsidiary of the Borrower or between Wholly-Owned Subsidiaries
of the Borrower and (b) in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
6.14. CHANGE IN FISCAL YEAR. The Borrower shall not change its Fiscal
Year to end on any date other than December 31 of each year.
6.15. INCONSISTENT AGREEMENTS. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into any indenture, agreement, instrument or
other arrangement which, (a) directly or indirectly prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence of the Obligations, the amending of the Loan
Documents or the ability of any Subsidiary to (i) pay dividends or make other
distributions on its capital stock, (ii) make loans or advances to the Borrower
or (iii) repay loans or advances from the Borrower or (b) contains any provision
which would be violated or breached by the making of Advances or by the
performance by the Borrower of any of its obligations under any Loan Document.
6.16. SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of Property which represents
more than 25% of the consolidated assets of the Borrower and its Subsidiaries,
as would be shown in the consolidated financial statements of the Borrower and
its Subsidiaries as at the end of the quarter immediately preceding the date on
which such determination is made, to any other Person(s) in any Fiscal Year.
6.17. Financial Covenants.
6.17.1. MINIMUM CONSOLIDATED NET WORTH. The Borrower shall at
all times maintain a minimum Consolidated Net Worth of at least
$2,500,000,000.
6.17.2. CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE.
The Borrower will maintain, as at the last day of each of its fiscal
quarters, a ratio of (a) Consolidated
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EBITDA to (b) Consolidated Interest Expense, in each case calculated for
the four fiscal quarters then ending, of not less than 4.0 to 1.0.
6.18. ERISA. The Borrower will (a) fulfill, and cause each member of
the Controlled Group to fulfill, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan, (b) comply, and cause
each member of the Controlled Group to comply, with all applicable provisions of
ERISA and the Code with respect to each Plan, except where such failure or
noncompliance individually or in the aggregate would not have a Material Adverse
Effect and (c) not, and not permit any member of the Controlled Group to, (i)
seek a waiver of the minimum funding standards under ERISA, (ii) terminate or
withdraw from any Plan or (iii) take any other action with respect to any Plan
which would reasonably be expected to entitle the PBGC to terminate, impose
liability in respect of, or cause a trustee to be appointed to administer, any
Plan, unless the actions or events described in the foregoing clauses (i), (ii)
or (iii) individually or in the aggregate would not have a Material Adverse
Effect.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement, any other Loan Document, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be false in any material respect on
the date as of which made or deemed made.
7.2 Nonpayment of any principal of any Loan when due, non-payment of
any Reimbursement Obligation within one (1) Business Day after the same becomes
due or non-payment of any interest upon any Loan or of any facility fee,
utilization fee, term out fee, LC Fee or other fee or obligation under any of
the Loan Documents within five (5) days after the same becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
SECTION 6.2, SECTION 6.3(a) or SECTIONS 6.10 through 6.18.
7.4 The breach by the Borrower (other than a breach which constitutes
a Default under SECTION 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within twenty (20) days after written
notice from the Agent or any Lender.
7.5 Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness aggregating in excess of $25,000,000 when due; or the default by
the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement or agreements under which any
such Indebtedness was created or is governed, or the occurrence of any other
event or existence of any other condition, the effect of any of which is to
cause, or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due
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prior to its stated maturity; or any such Indebtedness of the Borrower or any of
its Subsidiaries shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to the stated
maturity thereof.
7.6 The Borrower or any of its Subsidiaries shall (a) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this SECTION 7.6, (f) fail to contest in good faith any appointment
or proceeding described in SECTION 7.7 or (g) become unable to pay, not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in SECTION 7.6(d)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a "CONDEMNATION"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $25,000,000 (or multiple judgments or orders for
the payment of an aggregate amount in excess of $50,000,000), which is not
stayed on appeal or otherwise being appropriately contested in good faith and as
to which no enforcement actions have been commenced.
7.10 Any Change in Control shall occur.
7.11 (a) It shall be determined by the Borrower or any Subsidiary or
the actuary of either that the Funded Current Liability Percentage of any Single
Employer Plan is such that the Borrower or any Subsidiary shall be required to
make a Deficit Reduction Contribution for such Plan with respect to any plan
year or (b) any Termination Event shall occur in connection with any Plan which
could reasonably be expected to have a Material Adverse Effect.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION; FACILITY LC COLLATERAL ACCOUNT. (a) If any Default
described in SECTION 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the LC Issuer or any Lender and the Borrower
will be and become thereby unconditionally obligated, without any further
notice, act or demand, to pay to the Agent in immediately available funds, which
funds shall be held in the Facility LC Collateral Account, an amount equal to
the excess of (i) the amount of LC Obligations at such time, over (ii) the
amount on deposit in the Facility LC Collateral Account at such time which is
free and clear of all rights and claims of third parties and has not been
applied against the Reimbursement Obligations (such excess amount, the
"COLLATERAL SHORTFALL AMOUNT"). If any other Default occurs, the Required
Lenders (or the Agent with the consent or upon the instruction of the Required
Lenders) may (i) terminate or suspend the obligations of the Lenders to make
Loans hereunder and the obligation and power of the LC Issuer to issue Facility
LCs, or declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (ii) upon notice to the Borrower and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral
Account for application as provided below.
(b) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account for application as provided below.
(c) The Agent may, at any time or from time to time after
funds are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Reimbursement Obligations and (only if a Default under
Section 7.2 has occurred with respect thereto and is continuing) to the payment
of any other amounts as shall from time to time be due and payable to the
Lenders, the Agent or the LC Issuer under the Loan Documents.
(d) At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account. After all of the Reimbursement Obligations have been indefeasibly paid
in full, any funds remaining in the Facility LC Collateral Account shall be
returned by the Agent to the Borrower or paid to whomever may be legally
entitled thereto at such time.
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(e) If, within ten (10) Business Days after (i) acceleration
of the maturity of the Obligations or (ii) termination of the obligations of the
Lenders to make Loans and the obligation of the LC Issuer to issue Facility LCs
hereunder as a result of any Default (other than any Default as described in
SECTION 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (or, in the case of an acceleration and/or
termination upon the occurrence of a Default under SECTION 7.10, the Modified
Required Lenders), in their sole discretion, shall so direct the Agent, then the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this ARTICLE VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or thereunder
or waiving any Default hereunder or thereunder; PROVIDED, HOWEVER, that no such
supplemental agreement shall, without the consent of each Lender:
(a) Extend the Facility Termination Date or the Revolving
Credit Termination Date, compromise or forgive the principal amount of any Loan
or Reimbursement Obligation, or reduce the rate of interest or compromise or
forgive payment of interest on any Loan or Reimbursement Obligation, or reduce
the amount of any fee payable hereunder;
(b) Reduce the percentage specified in the definition of
Required Lenders or Modified Required Lenders;
(c) Increase the amount of the Commitment of any Lender
hereunder (except pursuant to SECTION 2.5(b));
(d) Amend this SECTION 8.2;
(e) Permit any assignment by the Borrower of its Obligations
or its rights hereunder; or
(f) Extend the expiry date of any Facility LC beyond the
Facility Termination Date or increase or extend the commitment of the LC Issuer
to issue Facility LCs.
PROVIDED, FURTHER, that no such supplemental agreement shall, without the
consent of the Modified Required Lenders, amend the definition of "Change in
Control" or amend or waive SECTION 7.10.
No amendment of any provision of this Agreement relating to the Agent shall
be effective without the written consent of the Agent and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. The Agent may waive payment of the fee required under
SECTION 12.3.2 without obtaining the consent of any other party to this
Agreement.
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Notwithstanding the foregoing, upon the execution and delivery of all
documentation required by SECTION 2.5(b) to be delivered in connection with an
increase to the Aggregate Commitment, the Agent, the Borrower and the new or
existing Lenders whose Commitments have been affected may and shall enter into
an amendment hereof (which shall be binding on all parties hereto) solely for
the purpose of reflecting any new Lenders and their new Commitments and any
increase in the Commitment of any existing Lender.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the
LC Issuer or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to SECTION 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent, the LC Issuer and the Lenders until the Obligations have been paid
in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive the making of the Credit Extensions
herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrower, the
Agent, the LC Issuer and the Lenders relating to the subject matter thereof
other than the fee letter described in SECTION 10.13.
9.5. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of
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its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns; PROVIDED, HOWEVER, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of SECTIONS 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the Agent
and the Arranger for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent or the
Arranger, which attorneys may be employees of the Agent or the Arranger) paid or
incurred by the Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, distribution (including, without
limitation, via the internet), review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Arranger, the LC Issuer and the Lenders for any costs, internal
charges and out-of-pocket expenses (including attorneys' fees and time charges
of attorneys for the Agent, the Arranger, the LC Issuer and the Lenders, which
attorneys may be employees of the Agent, the Arranger, the LC Issuer or the
Lenders) paid or incurred by the Agent, the Arranger, the LC Issuer or any
Lender in connection with the collection of the Obligations or the enforcement
of the Loan Documents. The Borrower further agrees to indemnify the Agent, the
Arranger, the LC Issuer and each Lender, their respective affiliates, and each
of their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agent, the
Arranger, the LC Issuer or any Lender or any affiliate is a party thereto) which
any of them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby, or the direct or
indirect application or proposed application of the proceeds of any Credit
Extension hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this SECTION 9.6 shall
survive the termination of this Agreement.
9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to the LC Issuer and each of the
Lenders.
9.8. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
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9.10. NONLIABILITY OF LENDERS. The relationship between the Borrower on
the one hand and the Lenders, the LC Issuer and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the Arranger nor
any Lender shall have any fiduciary responsibilities to the Borrower. Neither
the Agent, the Arranger, the LC Issuer nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations. Neither the
Agent, the Arranger, the LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to ▇▇▇ for,
any special, indirect, consequential or punitive damages suffered by the
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 12.4. Without limiting Section 9.4, the Borrower agrees
that the terms of this Section 9.11 shall set forth the entire agreement between
the Borrower and each Lender (including the Agent) with respect to any
confidential information previously or hereafter received by such Lender in
connection with this Agreement, and this Section 9.11 shall supersede any and
all prior confidentiality agreements entered into by such Lender with respect to
such confidential information.
9.12. DISCLOSURE. The Borrower and each Lender hereby acknowledge and
agree that Bank One and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with the Borrower and its
Affiliates.
9.13. USA PATRIOT ACT NOTIFICATION. The following notification is
provided to Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
Borrower: When Borrower opens an account, if Borrower is an individual, Agent,
the LC Issuer and the Lenders will ask for Borrower's name, residential address,
tax identification number, date of birth, and other information that will allow
Agent, the LC Issuer and the Lenders to identify Borrower, and, if Borrower is
not an individual, Agent, the LC Issuer and the Lenders will ask for Borrower's
name, tax identification number, business address, and other information that
will allow Agent, the LC Issuer and the Lenders to identify Borrower. Agent, the
LC Issuer and the Lenders may also ask, if Borrower is an individual, to see
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Borrower's driver's license or other identifying documents, and, if Borrower is
not an individual, to see Borrower's legal organizational documents or other
identifying documents.
ARTICLE X
THE AGENT
10.1. APPOINTMENT. Bank One, NA is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the "Agent")
hereunder and under each other Loan Document, and each of the Lenders
irrevocably (subject to Section 10.12) authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent agrees to act as
such contractual representative upon the express conditions contained in this
ARTICLE X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 1-201 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Agent.
10.3. GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower or any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in ARTICLE IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the
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validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders or, if expressly required hereunder, the Modified Required
Lenders or all the Lenders, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders. The
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders or, if expressly required hereunder,
the Modified Required Lenders or all the Lenders. The Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro-rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the
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Agent and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, PROVIDED that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent and (ii)
any indemnification required pursuant to SECTION 3.5(g) shall, notwithstanding
the provisions of this SECTION 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this SECTION 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9. NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, 45 days after the retiring
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Agent gives notice of its intention to resign. The Agent may be removed at any
time with or without cause by written notice received by the Agent from the
Required Lenders, such removal to be effective on the date specified by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders within thirty (30) days after the resigning Agent's giving
notice of its intention to resign, then the resigning Agent may appoint, on
behalf of the Borrower and the Lenders, a successor Agent. Notwithstanding the
previous sentence, the Agent may at any time without the consent of the Borrower
or any Lender, appoint any of its Affiliates which is a commercial bank as a
successor Agent hereunder. If the Agent has resigned or been removed and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders; PROVIDED, such Lenders so performing such duties
shall be deemed to be an Agent hereunder with full benefit of all provisions
indemnifying the Agent hereunder. No successor Agent shall be deemed to be
appointed hereunder until such successor Agent has accepted the appointment. Any
such successor Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Agent. Upon the effectiveness of the resignation or
removal of the Agent, the resigning or removed Agent shall be discharged from
its duties and obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Agent, the provisions of this
ARTICLE X shall continue in effect for the benefit of such Agent in respect of
any actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Agent by merger, or the Agent assigns its duties and
obligations to an Affiliate pursuant to this SECTION 10.12, then the term "Prime
Rate" as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Agent.
10.13. AGENT AND ARRANGER FEES. The Borrower agrees to pay to the Agent
and the Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Agent and the Arranger pursuant to that certain letter agreement
dated December 18, 2003, or as otherwise agreed from time to time.
10.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under ARTICLES IX and X.
10.15. SYNDICATION AGENTS; SENIOR MANAGING AGENTS; MANAGING AGENTS. None
of the Lenders identified in this Agreement as the "Syndication Agents", "Senior
Managing Agents" or "Managing Agents" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement in such identified
capacity other than those applicable to all Lenders as such.
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Without limiting the foregoing, none of such Lenders shall have or be deemed to
have a fiduciary relationship with any Lender. Each Lender hereby makes the same
acknowledgments with respect to such Lenders as it makes with respect to the
Agent in SECTION 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to SECTION 3.1, 3.2, 3.4, 3.5 or 9.6) in a greater proportion
than that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Aggregate Outstanding Credit Exposure held
by the other Lenders so that after such purchase each Lender will hold its
ratable proportion of the Aggregate Outstanding Credit Exposure. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Aggregate Outstanding
Credit Exposure. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made. If an amount to be
setoff is to be applied to Indebtedness of the Borrower to a Lender, other than
Indebtedness comprised of the Outstanding Credit Exposure of such Lender, such
amount shall be applied ratably to such other Indebtedness and to the
Indebtedness comprised of such Outstanding Credit Exposure.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents, (ii) any assignment by any Lender must be
made in compliance with SECTION 12.3 and (iii) any participation must be made in
compliance with SECTION 12.2. Any attempted assignment or transfer by any party
not made in compliance with this SECTION 12.1 shall be null and void, unless
such attempted assignment or transfer is treated as a participation in
accordance with SECTION 12.3.2. The parties to this Agreement acknowledge that
clause (ii) of this SECTION 12.1 relates only to absolute assignments and this
SECTION 12.1 does not prohibit assignments creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all
or any portion of its rights under
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this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a Fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; PROVIDED, HOWEVER, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of SECTION 12.3. The Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with SECTION 12.3; PROVIDED, HOWEVER, that the
Agent may in its discretion (but shall not be required to) follow instructions
from the Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights to
any Loan or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("PARTICIPANTS")
participating interests in any Outstanding Credit Exposure of such Lender,
any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its
Outstanding Credit Exposure and the holder of any Note issued to it in
evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Credit Extension
or Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of SECTION 8.2 or of
any other Loan Document.
12.2.3. BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that
each Participant which has been identified as such to the Borrower in
writing shall be deemed to have the right of setoff provided in SECTION
11.1 in respect of its participating interest in amounts owing under the
Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan Documents;
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PROVIDED, that each Lender shall retain the right of setoff provided in
SECTION 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in
SECTION 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared
in accordance with SECTION 11.2 as if each Participant were a Lender. The
Borrower further agrees that each Participant shall be entitled to the
benefits of SECTIONS 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to SECTION
12.3, PROVIDED that (i) a Participant shall not be entitled to receive any
greater payment under SECTION 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of SECTION 3.5 to the same extent as if it were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("PURCHASERS") all or any
part of its rights and obligations under the Loan Documents; PROVIDED that
no Lender's Commitment shall be greater than 20% of the Aggregate
Commitment after the effectiveness of any assignment. Such assignment shall
be substantially in the form of EXHIBIT D or in such other form as may be
agreed to by the parties thereto. The consent of the Borrower and the Agent
shall be required prior to an assignment becoming effective with respect to
a Purchaser which is not a Lender, an Affiliate thereof or an Approved
Fund; PROVIDED, HOWEVER, that if a Default has occurred and is continuing,
the consent of the Borrower shall not be required. Such consent shall not
be unreasonably withheld or delayed. Each such assignment with respect to a
Purchaser which is not a Lender or an Affiliate thereof shall (unless each
of the Borrower and the Agent otherwise consents) be in an amount not less
than the lesser of (i) $5,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment or Outstanding Credit Exposure (if the
applicable Commitment has been terminated). The amount of the assignment
shall be based on the Commitment or Outstanding Credit Exposure (if the
applicable Commitment has been terminated) subject to the assignment,
determined as of the date of such assignment or as of the "Trade Date", if
the "Trade Date" is specified in the assignment.
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent
of an assignment, together with any consents required by SECTION 12.3.1,
and (ii) payment of a $4,000 fee to the Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in such assignment. The assignment shall contain a representation
by the Purchaser to the effect that none of the consideration used to make
the purchase of the Commitment and Outstanding Credit Exposure under the
applicable
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assignment agreement constitutes "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender
party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower,
the Lenders or the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Outstanding
Credit Exposure assigned to such Purchaser. In the case of an assignment
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which survive
payment of the Obligations and termination of the applicable agreement. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this SECTION 12.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with SECTION 12.2. Upon the
consummation of any assignment to a Purchaser pursuant to this SECTION
12.3.2, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case
in principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.3.3. REGISTER. The Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; PROVIDED
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
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12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is not organized under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of SECTION 3.5(d).
ARTICLE XIII
NOTICES
13.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower, the LC Issuer or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its signature hereto
or (z) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this SECTION 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; PROVIDED that notices to the Agent under
ARTICLE II shall not be effective until received. Notwithstanding anything to
the contrary in this Section, the Borrower may furnish the financial statements
described in SECTIONS 6.1(a) and 6.1(b) by email or by posting such financial
statements on an internet web site made available to the Lenders.
13.2. CHANGE OF ADDRESS. The Borrower, the Agent, the LC Issuer and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent, the LC Issuer
and the Lenders and each party has notified the Agent by facsimile transmission
or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING,
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WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE
COURT SITTING IN CHICAGO,
ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[signature pages to follow]
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IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the Agent
have executed this Agreement as of the date first above written.
AON CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Treasurer
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Address: Aon Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE, NA,
individually and as LC Issuer and Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Director
----------------------------------------
Address: ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Group Vice President
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
----------------------------------------
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Credit Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-2-
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-3-
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Print Name: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
-▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-5-
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Senior Associate
----------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail code: MA DE 10010G
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Authorized Signatory
----------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-7-
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-8-
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Director
----------------------------------------
Address: ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-9-
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-10-
STATE STREET BANK AND TRUST
COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: 2 Avenue de Lafayette
Mail code: LCC2N
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Managing Director
----------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mystro ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-13-
PRICING SCHEDULE
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
------------ ------------ ------------- ------------- ------------ --------------
BORROWER DEBT
RATING AA-/AA3 A+/A1 A/A2 A-/A3 BBB+/Baa1 LESS
THAN BBB+/Baa1
Applicable
Facility Fee Rate .05% .06% .07% .09% .10% .125%
Applicable
Margin
Eurodollar Rate .15% .19% .23% .285% .40% .50%
Alternate Base
Rate 0.0 0.0 0.0 0.0 0.0 0.0
Applicable
Utilization Fee
Rate* (GREATER THAN 33%) .10% .10% .10% .125% .25% .25%
Applicable
Term Out
Premium Rate .125% .125% .125% .125% .25% .50%
----------
* The Applicable Utilization Fee Rate shall be payable (i) on and after
the Revolving Credit Termination Date, at all times and (ii) prior to
the Revolving Credit Termination Date, only with respect to
outstanding Advances and LC Obligations on days when Utilization is
greater than 33%. "Utilization" means, for any day, a percentage equal
to the aggregate principal amount of Loans hereunder, LC Obligations
hereunder and "Loans" (as defined in the Three Year Agreement)
outstanding on such day (and at the close of business on such day if a
Business Day) divided by the sum on such day of the Aggregate
Commitment and the "Aggregate Commitment" under the Three Year
Agreement; PROVIDED that for purposes of computing Utilization (a) the
Aggregate Commitment shall be deemed to in no event be less than the
aggregate outstanding principal amount of the Loans and LC Obligations
and (b) the "Aggregate Commitment" (as defined in the Three Year
Agreement) shall be deemed to in no event be less than the aggregate
outstanding principal amount of the "Loans" (as defined in the Three
Year Agreement).
Subject to the following two sentences, a particular Level Status shall
exist on a particular day if on such day the Borrower does not qualify for a
Level Status with more advantageous pricing and either the ▇▇▇▇▇'▇ Rating or the
S&P Rating is at least equal to the corresponding rating specified for such
Level Status in the table above. In the event of a difference in the equivalent
"rating level" from S&P and ▇▇▇▇▇'▇ resulting in a split of only one level, then
the Level Status shall be determined by reference to the higher of the two
Ratings. In the event of a difference in the equivalent "rating level" from S&P
and ▇▇▇▇▇'▇ resulting in a split of greater than one level, then the Level
Status shall be that Level Status one below the Level Status determined by
reference to the higher of the two Ratings. The above ratings are in the format
of S&P Rating/▇▇▇▇▇'▇ Rating.
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status, Level V Status or Level VI Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the Borrower Debt Rating issued by
▇▇▇▇▇'▇ and then in effect.
"Rating" means ▇▇▇▇▇'▇ Rating or S&P Rating.
"S&P Rating" means, at any time, the Borrower Debt Rating issued by S&P and
then in effect.
The Applicable Margin, Applicable Facility Fee Rate, Applicable Utilization
Fee Rate and Applicable Term Out Premium shall be determined in accordance with
the foregoing table based on the Borrower's Level Status as determined from its
then-current ▇▇▇▇▇'▇ and S&P Ratings. The Rating in effect on any date for the
purposes of this Schedule is that in effect at the close of business on such
date. If at any time the Borrower has no ▇▇▇▇▇'▇ Rating or no S&P Rating or the
Borrower does not qualify for a Level Status with more advantageous pricing,
Level VI Status shall exist. On the date hereof, Level V status shall be
applicable.
-2-
SCHEDULE 1
COMMITMENTS
LENDER COMMITMENT
------ ----------
Bank One, NA $ 38,000,000
ABN AMRO Bank N.V. $ 35,000,000
Citibank, N.A. $ 35,000,000
The Northern Trust Company $ 30,000,000
JPMorgan Chase Bank $ 25,000,000
The Bank of New York $ 25,000,000
Fleet National Bank $ 23,500,000
Royal Bank of Canada $ 23,500,000
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financing, Inc. $ 20,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $ 20,000,000
▇▇▇▇▇ Fargo Bank, N.A. $ 20,000,000
State Street Bank and Trust Company $ 15,000,000
The Bank of Nova Scotia $ 15,000,000
U.S. Bank National Association $ 12,500,000
TOTAL $ 337,500,000
==============