EXHIBIT 10.2
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CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
dated as of July 31, 2002
among
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
JPMORGAN CHASE BANK,
as Administrative Agent
CITICORP USA, INC.,
as Syndication Agent
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK,
WACHOVIA BANK,
THE ROYAL BANK OF SCOTLAND,
as Co-Documentation Agents
and
The Lenders Party Hereto
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Joint Bookrunners and Lead Arrangers
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms..........................................................1
Section 1.02. Performance; Time.....................................................28
Section 1.03. Accounting Principles.................................................28
Section 1.04. Use of Defined Terms..................................................28
Section 1.05. Rounding..............................................................28
Section 1.06. Exhibits and Schedules................................................28
Section 1.07. References to "Subsidiaries"..........................................29
Section 1.08. Miscellaneous Terms...................................................29
ARTICLE II
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
Section 2.01. The Commitments.......................................................29
Section 2.02. Borrowings, Conversions and Continuations of Committed Loans..........30
Section 2.03. Competitive Loans.....................................................31
Section 2.04. Prepayments...........................................................34
Section 2.05. Voluntary Reduction of Commitments....................................34
Section 2.06. Principal and Interest................................................35
Section 2.07. Fees..................................................................36
Section 2.08. Computation of Fees and Interest......................................37
Section 2.09. Manner and Treatment of Payments among the Lenders,
Borrowers and the Administrative Agent.............................37
Section 2.10. Funding Sources.......................................................39
Section 2.11. Letters of Credit.....................................................39
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes.................................................................43
Section 3.02. Illegality............................................................44
Section 3.03. Increased Costs and Reduction of Return...............................44
Section 3.04. Capital Adequacy......................................................45
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Section 3.05. Breakfunding Costs....................................................45
Section 3.06. Inability to Determine Rates..........................................46
Section 3.07. Matters Applicable to all Requests for Compensation...................46
ARTICLE IV
CONDITIONS
Section 4.01. Conditions Precedent to Closing Date..................................47
Section 4.02. Any Extensions of Credit..............................................49
Section 4.03. Foreign Currency Loans................................................49
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Corporate Existence and Power.........................................51
Section 5.02. Corporate Authorization; No Contravention.............................51
Section 5.03. Governmental Authorization............................................51
Section 5.04. Binding Effect........................................................52
Section 5.05. Litigation............................................................52
Section 5.06. No Event of Default...................................................52
Section 5.07. ERISA Compliance......................................................52
Section 5.08. Regulations T, U and X................................................53
Section 5.09. Taxes.................................................................53
Section 5.10. Financial Condition...................................................54
Section 5.11. Environmental Matters.................................................54
Section 5.12. Subsidiaries..........................................................54
Section 5.13. Insurance.............................................................54
Section 5.14. Full Disclosure.......................................................55
Section 5.15. Public Utility Holding Company Act; Investment Company Act............55
Section 5.16. Title to Properties...................................................55
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01. Financial Statements..................................................56
Section 6.02. Certificates; Other Information.......................................56
Section 6.03. Notices...............................................................57
Section 6.04. Preservation of Corporate Existence, Etc..............................57
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Section 6.05. Maintenance of Property...............................................58
Section 6.06. Insurance.............................................................58
Section 6.07. Compliance with Laws..................................................58
Section 6.08. Inspection of Property and Books and Records..........................58
Section 6.09. Environmental Laws....................................................59
Section 6.10. Use of Proceeds.......................................................59
Section 6.11. Regulatory Approvals..................................................59
Section 6.12. Transactions with Officers, Directors and Affiliates..................59
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01. Liens, Negative Pledges...............................................59
Section 7.02. Dispositions..........................................................60
Section 7.03. Mergers...............................................................61
Section 7.04. Limitation on Guaranty Obligations....................................61
Section 7.05. Synthetic Leases......................................................61
Section 7.06. Compliance with ERISA.................................................62
Section 7.07. Interest Coverage Ratio...............................................62
Section 7.08. Ratio of Consolidated Funded Debt to EBITDA...........................62
Section 7.09. Accounting Changes....................................................62
Section 7.10. Change in Nature of Business..........................................62
Section 7.11. Hedging Agreements....................................................62
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
Section 8.01. Events of Default.....................................................62
Section 8.02. Remedies Upon Event of Default........................................64
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01. Appointment and Authorization.........................................67
Section 9.02. Administrative Agent and Affiliates...................................67
Section 9.03. Lenders' Credit Decisions.............................................68
Section 9.04. Action by Administrative Agent........................................68
Section 9.05. Liability of Administrative Agent.....................................69
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Section 9.06. Indemnification.......................................................70
Section 9.07. Successor Administrative Agent........................................71
Section 9.08. No Obligations of Credit Parties......................................71
Section 9.09. Documentation Agent; Syndication Agent................................71
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments; Consents..................................................72
Section 10.02. Notices...............................................................73
Section 10.03. No Waiver; Cumulative Remedies........................................73
Section 10.04. Costs and Expenses....................................................73
Section 10.05. Binding Effect; Assignment............................................74
Section 10.06. Sharing of Setoffs....................................................76
Section 10.07. Counterparts..........................................................77
Section 10.08. Severability..........................................................77
Section 10.09. No Third Parties Benefited............................................77
Section 10.10. Time..................................................................77
Section 10.11. GOVERNING LAW AND JURISDICTION........................................77
Section 10.12. WAIVER OF JURY TRIAL..................................................78
Section 10.13. Entire Agreement......................................................78
Section 10.14. Interpretation........................................................78
Section 10.15. Nature of Lenders' Obligations........................................79
Section 10.16. Indemnity; Damage Waiver..............................................79
Section 10.17. Nonliability of the Lenders...........................................80
Section 10.18. Failure to Charge Not Subsequent Waiver...............................81
Section 10.19. Headings..............................................................81
Section 10.20. Foreign Lenders and Participants......................................81
Section 10.21. Confidentiality.......................................................82
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EXHIBITS:
Exhibit A --Form of Request for Extension of Credit
Exhibit B --Form of Compliance Certificate
Exhibit C --Form of Committed Loan Note
Exhibit D-1 --Form of Competitive Bid Request
Exhibit D-2 --Form of Competitive Bid
Exhibit D-3 --Form of Competitive Loan Note
Exhibit E --Form of Letter of Credit Request
Exhibit F --Form of Notice of Letter of Credit Withdrawal
Exhibit G --Form of Notice of Assignment and Acceptance
Exhibit H --Form of Opinion of Counsel
Exhibit I --Form of Notice of Participation
Exhibit J --Form of Foreign Borrower Joinder Agreement
Exhibit K --Form of Guaranty
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SCHEDULES
Schedule 2.01 --Commitments and Pro Rata Shares
Schedule 5.05 --Litigation
Schedule 5.06 --Defaults
Schedule 5.07 --ERISA Plans
Schedule 5.12 --Subsidiaries
Schedule 7.01 --Existing Liens
Schedule 7.02 --Certain Permitted Dispositions
Schedule 10.02 --Lending Offices and Notice Addresses
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CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
This CREDIT AGREEMENT (Multi-Year Facility) dated as of July 31, 2002 is
entered into by and among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a
Delaware corporation (the "Company"), each lender whose name is set forth on the
signature pages of this Agreement and each lender which may hereafter become a
party to this Agreement (collectively, the "Lenders" and individually, a
"Lender") and JPMorgan Chase Bank, as Administrative Agent, Citicorp USA, Inc.
as Syndication Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, Wachovia Bank, N.A. and The Royal
Bank of Scotland plc, as Co-Documentation Agents.
RECITALS
A. The Company has requested that the Lenders provide a revolving credit
facility hereunder to replace the Existing Agreement (as defined below) and
repay outstanding indebtedness thereunder, if any, and for general corporate
purposes.
B. The Lenders are willing to provide a credit facility on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the
following terms will have the following meanings, unless the context otherwise
requires:
"Adjusted Dollar LIBOR" means, with respect to any LIBOR Loan for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) Dollar LIBOR for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Adjusted IBOR" means, with respect to any Foreign Currency Loan in any
Foreign Currency for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) IBOR for such
Foreign Currency for such Interest Period multiplied by (b) the Statutory
Reserve Rate.
"Absolute Rate" means a rate of interest for a Competitive Loan
determined from an Absolute Rate Bid that has been accepted by the Company.
"Absolute Rate Bid" has the meaning set forth in Section 2.03(b).
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder or any successor administrative
agent.
"Administrative Agent's Office" means the Administrative Agent's address
and account as set forth on Schedule 10.02, or such other address or account for
all or any type of Loans, as the Administrative Agent hereafter may designate by
written notice to the Credit Parties and the Lenders.
"Administrative Agent--Related Persons" means the Administrative Agent
(including any successor agent), together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Affiliate" means, as to any Person, any other Person which, directly,
or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person possesses, directly
or indirectly through one or more intermediaries, the power to direct or cause
the direction of the management and policies of the other Person, whether
through the ownership of voting securities, the ability to exercise voting
power, by contract or otherwise. In no event shall the Lender be deemed an
"Affiliate" of any Credit Party or of any Subsidiary of any Credit Party.
"Agreement" means this Credit Agreement, as amended, supplemented,
modified, restated or extended from time to time in accordance with the terms
hereof.
"Applicable Amount" means, (a) for any Pricing Period with respect to
any Dollar LIBOR Loan or any Foreign Currency Loan, the per annum amounts set
forth below (i) under "Applicable Margin Facilities Usage * 50%" if the
Facilities Usage is equal to or below 50%; or (ii) under "Applicable Margin
Facilities Usage ** 50%" if the Facilities Usage exceeds 50%; in each case
opposite the Pricing Level in effect from time to time (it being understood that
the Applicable Amount for any Dollar LIBOR Loan or Foreign Currency Loan may
vary during an Interest Period if there is a change in Pricing Level at any time
during such Interest Period due to a change in the Pricing Rating); and (b) with
respect to the Facility Fee, the per annum amount set forth below under
"Facility Fee Rate" opposite the Pricing Level in effect from time to time; in
each case in basis points per annum:
Pricing Applicable Margin Applicable Margin Facility Fee
Level Facilities Usage * 50% Facilities Usage ** 50% Rate
------- ---------------------- ----------------------- ------------
1 28.5 33.5 9.0
2 31.5 39.0 11.0
3 49.0 59.0 13.5
4 70.0 82.5 17.5
5 90.0 107.5 22.5
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* less than or equal to
** greater than
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"Pricing Level" means, as of any date, the pricing level set forth below
opposite the most creditworthy applicable Pricing Rating as in effect as
of the first day of the Pricing Period in which such date occurs;
Pricing Rating
Pricing Level -----------------
------------- S&P Moody's
------ ---------
1 GREATER THAN A- A3
2 EQUAL TO A- A3
3 EQUAL TO BBB+ Baa1
4 EQUAL TO BBB Baa2
5 EQUAL TO OR LESS THAN BBB- Baa3
provided, however, that if there is no Pricing Rating, the Applicable
Amount means (a) for any Pricing Period with respect to any Dollar LIBOR
Loan or any Foreign Currency Loan, the per annum amounts set forth below
(i) under "Applicable Margin Facilities Usage * 50%" if the Facilities
Usage is equal to or below 50%, or (ii) under "Applicable Margin
Facilities Usage ** 50%" if the Facilities Usage exceeds 50%; in each
case opposite the Alternative Pricing Level in effect from time to time
(it being understood that the Applicable Amount for any Dollar LIBOR
Loan or Foreign Currency Loan may vary during an Interest Period if
there is a change in the Alternative Pricing Level at any time during
such Interest Period due to a change in the Debt / EBITDA Ratio), and
(b) with respect to the Facility Fee, the per annum amount set forth
below under "Facility Fee Rate" opposite the Alternative Pricing Level
in effect from time to time; provided, that if the Compliance
Certificate is not delivered by the date required by Section 6.02(a) at
the time when the Applicable Amount is determined without a Pricing
Rating, then, subject to other provisions of this Agreement, commencing
on the date such Compliance Certificate was required to be delivered
until the date such Compliance Certificate is delivered, the Applicable
Amount set forth opposite Alternative Pricing Level 4 shall apply; in
each case in basis points per annum:
Pricing Applicable Margin Applicable Margin Facility Fee
Level Facilities Usage * 50% Facilities Usage ** 50% Rate
------- ---------------------- ----------------------- ------------
1 31.5 39.0 11.0
2 49.0 59.0 13.5
3 70.0 82.5 17.5
4 90.0 107.5 22.5
"Alternative Pricing Level" means, as of any date, the pricing level set
forth opposite the lowest Debt / EBITDA Ratio determined at the most
recent quarter-end prior to the first day of the Pricing Period in which
such date occurs:
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* less than or equal to
** greater than
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Alternative
Pricing Level Debt / EBITDA Ratio
------------- ------------------------------------------------
1 LESS THAN 1.0
2 EQUAL TO OR GREATER THAN 1.0 BUT LESS THAN 1.5
3 EQUAL TO OR GREATER THAN 1.5 BUT LESS THAN 2.0
4 EQUAL TO OR GREATER THAN 2.0 BUT LESS THAN 2.75
"Debt / EBITDA Ratio" means, at any date of determination, the ratio of
consolidated debt of the Company, as of such date, to EBITDA at the most
recent quarter-end for the preceding four fiscal quarters.
"Pricing Level Change Date" means (a) with respect to any change in the
Pricing Rating which results in a change in the Applicable Amount, the
date of the public announcement of the change in such Pricing Rating or
(b) with respect to any change in the Debt / EBITDA Ratio which results
in a change in the Applicable Amount, the date upon which the Company is
required by Section 6.02(a) to deliver such Compliance Certificate.
"Pricing Period" means (a) the period commencing on the Closing Date and
ending on the first Pricing Level Change Date to occur thereafter and
(b) each subsequent period commencing on each Pricing Level Change Date
and ending the day prior to the next Pricing Level Change Date.
"Pricing Rating" means, as of any date of determination, the rating, if
any, of the Company's senior unsecured debt, as determined by either
Standard & Poor's Corporation ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"); provided, that if the Company's senior unsecured debt is
rated by both of such rating agencies, then the more creditworthy of
such credit ratings shall apply unless there is a split rating of two
grades or more, in which case the rating one grade above the lower
rating shall apply.
"Applicable Taxes" means any and all present or future taxes (including
documentary taxes), levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto
imposed by a Governmental Authority relating to any Loan Document, including any
liabilities imposed on amounts paid by any Credit Party to indemnify or
reimburse any Person for such amounts, excluding Lender Taxes.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Availability Period" means the period commencing on the Closing Date
and ending, subject to Article VIII, on the day before the Maturity Date.
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"Base Rate" means the higher of: (a) the Federal Funds Rate plus 0.50%,
or (b) the rate of interest publicly announced from time to time by JPMorgan
Chase Bank as its reference rate, which shall not necessarily be its lowest or
best rate charged to any of its customers.
"Base Rate Loan" means a Dollar Loan made hereunder from any Lender's
Domestic Lending Office that bears interest at the Base Rate.
"Borrower" means, in respect of any Dollar Loan, the Company and, in
respect of any Foreign Currency Loan, the Foreign Borrower borrowing such
Foreign Currency Loan under this Agreement.
"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting of
Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"British Pounds Sterling" means lawful money of the United Kingdom.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close, provided that when used in connection with any Borrowing, Continuation,
Conversion to or from, prepayment, assignment, participation or determination of
any interest rate, margin, fee, Interest Period or interest or principal payment
date or similar determination in respect of any (a) Dollar LIBOR Loan or Foreign
Currency Loan in British Pounds Sterling, "Business Day" shall exclude any such
day on which commercial banks are not open for dealings in deposits in the
London interbank market, (b) Foreign Currency Loan in Euros, "Business Day"
shall also exclude any day on which the TARGET payment system is not open for
the settlement of payment in Euro and (c) Foreign Currency Loan in any other
Foreign Currency, "Business Day" shall also exclude any day on which banks are
not open for dealings in deposits in such Foreign Currency in the Principal
Financial Center for such Foreign Currency.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law (provided
that if such guideline, request or directive does not have the force of law,
compliance therewith is customary for banks regulated in a manner similar to
such Lender), rule or regulation, whether or not having the force of law, in
each case, regarding capital adequacy of such Lender or of any corporation
controlling such Lender.
"Capital Lease" has the meaning specified in the definition of Capital
Lease Obligations.
"Capital Lease Obligations" means all monetary obligations of any Person
under any leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease ("Capital Lease").
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"Canadian Dollars" means lawful money of Canada.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of a Lender.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.01 are satisfied or waived by the Lenders and the
Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"Commitment" means, for each Lender, the amount set forth as such
opposite such Lender's name on Schedule 2.01 under Commitment, as such amount
may be reduced pursuant to the terms of this Agreement (collectively, the
combined "Commitments") . The respective Pro Rata Shares of the Lenders in the
combined Commitments are set forth in Schedule 2.01.
"Committed Loan" means a Dollar Loan or a Foreign Currency Loan.
"Committed Loan Note" means the promissory note made by any Borrower in
favor of a Lender evidencing such Lender's Committed Loans, in the case of
Dollar Loans, substantially in the form of Exhibit C and, in the case of Foreign
Currency Loans, in such form as the Administrative Agent may require in light of
commercial banking practices in the jurisdiction of the applicable Foreign
Borrower, either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted (collectively,
the "Committed Loan Notes").
"Company" has the meaning specified in the preamble.
"Competitive Bid" means (a) a written bid delivered to the
Administrative Agent to provide Competitive Loans, substantially in the form of
Exhibit D-2, duly completed and signed by a Lender, or (b) a telephonic bid made
by a Lender to the Administrative Agent to provide Competitive Loans including
the substance of Exhibit D-2, promptly confirmed by a written Competitive Bid.
"Competitive Bid Maximum" means the maximum amount(s) a Lender is
willing to bid under a Competitive Bid for all Competitive Loans included
therein and/or individual Competitive Loans included therein.
"Competitive Bid Request" means (a) a written request delivered to the
Administrative Agent requesting Competitive Bids, substantially in the form of
Exhibit
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D-l, duly completed and signed by a Responsible Officer, or (b) a telephonic
request made by a Responsible Officer to the Administrative Agent requesting
Competitive Bids including the substance of Exhibit D-1, promptly confirmed by a
written Competitive Bid Request.
"Competitive Loan" means a Loan made by any Lender to the Company under
the combined Commitments not determined by that Lender's Pro Rata Share pursuant
to Section 2.03, bearing interest at an Absolute Rate or on the basis of a
margin above or below Adjusted Dollar LIBOR. All Competitive Loans will be made
in Dollars.
"Competitive Loan Minimum Amount" means, with respect to each of the
following actions with respect to each type of Competitive Loan, the following
amounts set forth opposite such action under such type of Competitive Loan (a
reference to "Competitive Loan Minimum Amount" shall also be deemed a reference
to the multiples in excess thereof set forth on the last line below):
Absolute Rate LIBOR
Type of Action Minimum Minimum
-------------------------------------------------------------
Competitive Bid Requests $5,000,000 $5,000,000
Competitive Bids $1,000,000 $5,000,000
Competitive Loans $1,000,000 $5,000,000
Multiples in excess $ 500,000 $1,000,000
of above amounts
"Competitive Loan Note" means the promissory note made by the Company in
favor of a Lender evidencing the Competitive Loans made by that Lender,
substantially in the form of Exhibit D-3, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted (collectively, the "Competitive Loan Notes").
"Competitive Loan Requisite Time" means, with respect to any of the
actions listed below, the time set forth opposite such action on or prior to the
date set forth below (all times are New York time):
Action Time Date
------ ---- ----
Absolute Rate Loan Dollar LIBOR Loan
------------------ -----------------
Competitive Bid Request 11:00 a.m. 1 Business Day prior 4 Business Days prior
to Credit Date to Credit Date
Competitive Bid by Lenders 11:00 a.m. Credit Date 3 Business Days prior
other than Administrative to Credit Date
Agent
Competitive Bid by 10:45 a.m. Credit Date 3 Business Days prior
Administrative Agent as to Credit Date
Lender under this Agreement
Company's Acceptance 11:30 a.m. Credit Date 3 Business Days prior
to Credit Date
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"Compliance Certificate" means a certificate substantially in the form
of Exhibit B, properly completed and signed by a Responsible Officer.
"Consolidated Funded Debt" means, for any period, for the Company and
its subsidiaries on a consolidated basis in accordance with GAAP, an amount
equal to the sum of, without duplication, (a) all indebtedness of the Company
and its consolidated subsidiaries for borrowed money plus (b) all Indebtedness
of the Company and its consolidated subsidiaries incurred in connection with the
acquisition of assets or property plus (c) the principal portion of all Capital
Lease Obligations of the Company and its consolidated subsidiaries plus (d) all
obligations of the Company and its consolidated subsidiaries under Permitted
Accounts Receivable Financings plus (e) indebtedness of the Company and its
consolidated subsidiaries attributable to Synthetic Leases related to tangible
Property plus (f) Deferred Purchase Price Obligations of the Company and its
consolidated subsidiaries plus (g) all Guaranty Obligations of the Company and
its consolidated subsidiaries with respect to indebtedness for borrowed money of
any other Person; in each of cases (a) through (g) as of the last day of such
period.
"Continuation" and "Continue" each mean, with respect to any Loan other
than a Base Rate Loan, the continuation of such Loan as the same type of Loan in
the same principal amount, but with a new Interest Period and an interest rate
determined as of the first day of such new Interest Period. Continuations must
occur on the last day of the Interest Period for such Loan.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Company pursuant to Section 414(b) or (c) of the Code.
"Conversion" and "Convert" each mean, with respect to any Committed
Loan, the conversion of one type of Loan into another type of Loan. With respect
to Loans other than Base Rate Loans, Conversions other than Conversion upon a
Default or Event of Default must occur on the last day of the Interest Period
for such Loan.
"Credit Date" means (i) with respect to any Loan, the Business Day set
forth in the relevant Request for Extension of Credit or Competitive Bid
Request, as applicable, as the date upon which the applicable Borrower desires
to borrow such Loan, and (ii) with respect to any Letter of Credit, the Business
day set forth in the relevant LC Request as the date upon which the Company
desires the Issuing Bank to issue such Letter of Credit.
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"Credit Parties" means the Company and the Foreign Borrowers,
collectively.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Default Rate" means an interest rate equal to the underlying interest
rate applicable to such type of Loan plus the Applicable Amount, if any,
otherwise applicable plus 2%, to the fullest extent permitted by any Requirement
of Law.
"Deferred Purchase Price Obligations" means, as applied to any Person,
all monetary obligations to make scheduled payments in excess of $10,000,000
with respect to the deferred purchase price of Property or services (other than
trade accounts payable in the Ordinary Course of Business).
"Disposition" means the voluntary sale, transfer, or other disposition
(but not including a pledge or hypothecation except as set forth below in this
definition) of any asset of the Company or any of its Subsidiaries, including
without limitation any sale, assignment, pledge, hypothecation, transfer or
other disposal with or without recourse of any notes or accounts receivable or
any rights and claims associated therewith, other than a Permitted Disposition.
"Dollar LIBOR" has the meaning specified in the definition of "IBOR."
"Dollar LIBOR Loan" means a Loan made hereunder to the Company that
bears interest at a rate determined by reference to Adjusted Dollar LIBOR.
"Dollar Loan" means a revolving Loan made to the Company by any Lender
in accordance with its Pro Rata Share under that Lender's Commitment pursuant to
Section 2.01(a), and includes Dollar LIBOR Loans and Base Rate Loans. All Dollar
Loans will be made in Dollars.
"Dollars" and the sign "$" each mean lawful money of the United States
of America.
"Domestic Lending Office" means, with respect to each Lender, its
office, branch or affiliate specified as its domestic lending office by notice
to the Administrative Agent.
"EBITDA" means, for any period, for any Person, an amount equal to Net
Income of such Person and its consolidated subsidiaries for that period, plus
(without duplication and to the extent incorporated in the calculation of Net
Income) (a) Interest Expense of such Person and its consolidated subsidiaries
for that period, plus (b) the aggregate amount of consolidated federal and state
taxes on or measured by income of such Person and its consolidated subsidiaries
for that period (whether or not payable during that period), plus (c)
consolidated depreciation, amortization and all other non-cash items
-9-
(including non-cash compensation and impairment charges) of such Person and its
consolidated subsidiaries for that period, minus (d) any gains attributable to
the sale of assets plus (e) any losses attributable to the sale of assets, and
minus (f) any items of income or loss in respect of (1) equity in the income or
loss of unconsolidated affiliates or (2) minority interests in the income or
loss of consolidated subsidiaries, in each case as determined in accordance with
GAAP; it being understood that any items of loss or expense would be added to,
and any items of gain or income would be deducted from Net Income for the
purpose of determining EBITDA under this paragraph.
"Effective Date" has the meaning specified in Section 4.03.
"Eligible Assignee" means (i) a financial institution organized under
the laws of the United States, or any state thereof, and having total assets of
at least $1,000,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets of at least $1,000,000,000, provided that such bank is
acting through a branch or agency located in the United States; (iii) a Person
that is primarily engaged in the business of commercial banking and that is (a)
a Subsidiary of a Lender, (b) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (c) a Person of which a Lender is a Subsidiary; (iv) a CLO, or
(v) another Lender.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging liability or responsibility for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), Property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based upon (a) the
presence, placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from Property, whether or not owned by the
Company, or (b) any other circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws, statutes,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices, binding agreements, licenses, authorizations and permits issued,
promulgated or entered into by any Governmental Authority, in each case relating
to environmental, health, safety and land use matters (excluding matters
relating to zoning and building permits); including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation
-10-
and Recovery Act, the Toxic Substances Control Act, the Emergency Planning and
Community Right-to-Know Act, the California Hazardous Waste Control Law, the
California Solid Waste Management, Resource, Recovery and Recycling Act, the
California Water Code and the California Health and Safety Code.
"Equivalent Amount" means at any time of determination, with respect to
any amount in any currency denominated in a Foreign Currency, the net amount of
Dollars into which such amount of Foreign Currency would be converted at such
time at applicable exchange rates, as determined by the Administrative Agent,
which determination will be final in the absence of manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company or any Subsidiary of the
Company within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan which is a Materially Underfunded Plan; (b) a
withdrawal by any member of the Controlled Group from a Qualified Plan which is
a Materially Underfunded Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan which is a Materially Underfunded Plan; (d) the
filing of a notice of intent to terminate, the treatment of a plan amendment as
a termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan subject to Title IV of ERISA; (e) a
failure to make required contributions to a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan; (f) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Qualified
Plan or Multiemployer Plan which is a Materially Underfunded Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group with respect to a Materially Underfunded Plan; (h) an
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Qualified Plan which is
a Materially Underfunded Plan; (i) any member of the Controlled Group engages in
or otherwise becomes liable for a non-exempt prohibited transaction which would
have a Material Adverse Effect; or (j) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary with respect to any Qualified Plan
for which the Company or any of its Subsidiaries may be directly or indirectly
liable which would have a Material Adverse Effect.
-11-
"Euro" means lawful money of Austria, Belgium, Finland, France, Germany,
Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal and Spain, and
such other countries as may hereafter join the Euro Zone.
"Eurocurrency Lending Office" means, with respect to each Lender, its
office, branch or affiliate specified as its Eurocurrency lending office by
notice to the Administrative Agent.
"Euromarket Funded" means, with respect to a Loan, that such Loan shall
bear interest by reference to Dollar LIBOR or London IBOR (both as defined in
the definition of "IBOR") plus the Applicable Amount, and that such Loan shall
be made from the relevant Eurocurrency Lending Office of the Lender making such
Loan.
"Event of Default" has the meaning provided in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Agreement" means that certain Credit Agreement dated as of
August 20, 1997 between the Company and Bank of America National Trust and
Savings Association, as administration agent, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as syndication agent, Citicorp USA, Inc., as documentation agent, and
various lenders.
"Extension of Credit" means the Borrowing, Conversion or Continuation of
any Loans (collectively, the "Extensions of Credit").
"Facility Fee" means the fee payable by the Company to the
Administrative Agent pursuant to Section 2.07.
"Facilities Usage" means, as of any date, the amount expressed as a
percentage calculated as (A) the sum of (i) all Loans outstanding under the
364-Day Agreement and (ii) all Loans outstanding and the amount of the LC
Exposure under this Agreement divided by (B) the sum of (i) the Lenders'
Commitments under this Agreement and (ii) the Lenders' Commitments under the
364-Day Agreement; provided that for the purposes of subclauses (A)(i) and
(B)(ii) of this paragraph only, the terms "Lenders", "Loans", and "Commitments"
shall have the meanings as defined under the 364-Day Agreement.
"Federal Funds Rate" means the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day of determination
(or if such day of determination is not a Business Day, for the next 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
for such day on such transaction received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
-12-
"Federal Reserve Board" means the U.S. Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiscal Quarter" means, as applicable, the fiscal quarter of the Company
and its Subsidiaries as reflected in the Company's consolidated financial
statements.
"Fiscal Year" means, as applicable, the fiscal year of the Company and
its Subsidiaries as reflected in the Company's consolidated financial
statements.
"Foreign Borrower" means any Person that becomes a Foreign Borrower
hereunder in accordance with Section 2.01(d), but only to the extent Foreign
Borrower Obligations of such Person are outstanding.
"Foreign Borrower Joinder Agreement" means an agreement in the form
attached as Exhibit J.
"Foreign Borrower Obligations" means all Obligations of Foreign
Borrowers.
"Foreign Currency" means British Pounds Sterling, Canadian Dollars,
Japanese Yen and Euro or such other currency as agreed to by the Administrative
Agent and all Lenders. Each currency must be one (a) that is readily available
to the Lenders and freely transferable and convertible into Dollars, and (b) in
which deposits are generally available to the Lenders in the London interbank
market.
"Foreign Currency Limit" means, at any time, the lesser of (a)
$100,000,000 and (b) 100% of the combined Commitments in effect at such time.
"Foreign Currency Loan" means a revolving Loan made hereunder to a
Foreign Borrower in a Foreign Currency and bearing interest at Adjusted IBOR for
such Foreign Currency.
"GAAP" means generally accepted accounting principles in the United
States of America set forth from time to time in the opinions and pronouncements
of the U.S. Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the U.S. Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the accounting profession), or in such other
statements by such other entity as may be in general use by significant segments
of the U.S. accounting profession, which are applicable to the circumstances as
of the date of determination.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental agency, central bank or comparable authority, authority, board,
bureau, commission, department or instrumentality, or (c) any court or
administrative tribunal.
-13-
"Guaranty" means the guaranty, dated as of July 31, 2002 and executed by
the Company in the form attached as Exhibit K.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness, lease,
letter of credit, surety bond, bankers' acceptance or other obligation (the
"primary obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any Property
constituting direct or indirect security therefor, or (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, or (c) to purchase
Property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof. The
amount of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof.
"Hazardous Materials" means all those substances which are regulated by,
or which may form the basis of liability under, any Environmental Law, including
all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"Hedging Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Company or its Subsidiaries shall be a Hedging Agreement;
provided further that no contingent purchase price, earn-out, royalty or similar
payment obligation relating to any acquisition or divestiture of a Person by the
Company or its Subsidiaries or contract for intellectual property or other goods
and services supplied or received by the Company or its Subsidiaries shall be a
Hedging Agreement.
"IBOR" shall mean, with respect to any Interest Period for a Dollar
LIBOR Loan or Foreign Currency Loan, the rate per annum determined by the
Administrative Agent as follows:
-14-
(a) in the case of a Dollar LIBOR Loan, the rate ("Dollar LIBOR")
appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for Dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
"IBOR" and "Dollar LIBOR" with respect to such Dollar LIBOR Loan for such
Interest Period shall be the rate (rounded upwards, if necessary, to the next
1/16 of 1%) at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; or
(b) in the case of a Euromarket Funded Foreign Currency Loan
(other than Loans in British Pounds Sterling), the rate ("London IBOR")
appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
deposits in the London interbank market) at approximately 11:00 A.M., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for deposits in such Foreign Currency with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, "IBOR" and "London IBOR" with respect to such Euromarket Funded
Foreign Currency Loan for such Interest Period shall be the rate at which
deposits in such Foreign Currency in an amount substantially equal to the
principal amount of such Foreign Currency Loan and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; or
(c) in the case of a Euromarket Funded Foreign Currency Loan in
British Pounds Sterling or a Locally Funded Foreign Currency Loan, the rate
("Local Market IBOR") at which deposits in such Foreign Currency in an amount
substantially equal to the principal amount of such Foreign Currency Loan and
for a maturity comparable to such Interest Period are offered by the principal
office of the Administrative Agent in the interbank deposit market in the
Principal Financial Center of such Foreign Currency in immediately available
funds at approximately 11:00 a.m., local time, two Business Days prior to the
commencement of such Interest Period.
-15-
"IBOR Loans" means Dollar LIBOR Loans and Foreign Currency Loans.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services (other than trade
payables entered into in the ordinary course of business pursuant to ordinary
terms); (c) all matured or drawn and unreimbursed reimbursement obligations with
respect to surety bonds, letters of credit, bankers' acceptances and similar
instruments (in each case, to the extent non-contingent); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
Property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, in either case with
respect to Property acquired by the Person (even though the rights and remedies
of the seller or bank under such agreement in the event of default are limited
to repossession or sale of such Property); (f) all Capital Lease Obligations;
(g) all indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in Property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (h) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (f) above. Indebtedness shall not
include life insurance policy loans to officers, directors and employees of such
Person, to the extent such loans are secured by the surrender value of such life
insurance policy.
"Information Memorandum" means the Confidential Information Memorandum
dated June 19, 2002 relating to the Company and the Transactions.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in the case of clause (a) and (b) undertaken under U.S. Federal,
State or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means, for the four consecutive financial
quarters immediately preceding the determination, the ratio of (i) EBITDA to
(ii) Interest Expense.
"Interest Expense" means, for any period, for any Person, the sum,
without duplication, of total consolidated interest expense (including that
portion attributable to Capitalized Leases in conformity with GAAP) of such
Person and its consolidated subsidiaries.
-16-
"Interest Payment Date" means, (a) with respect to any Committed Loan
that is a IBOR Loan, (i) the last day of each Interest Period applicable to, or
the maturity of, such Loan; provided, however, that if any Interest Period for a
IBOR Loan exceeds three months, interest shall also be paid on the date which
falls, as applicable, three, six, or nine months after the beginning of such
Interest Period; (ii) any date that such Loan is prepaid in whole or in part,
and (iii) the Maturity Date, and (b) with respect to any Base Rate Loan, the
last Business Day of each calendar quarter and the Maturity Date.
"Interest Period" means, as to any Committed Loan other than a Base Rate
Loan, the period commencing on the date specified by the applicable Credit Party
in its Request for Extension of Credit and ending one, two, three or six months
(or, in the case of a Dollar LIBOR Loan, if consented to by all Lenders, nine or
12 months) thereafter, provided that:
(a) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) No Interest Period for any Loan shall extend beyond the Maturity
Date.
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as the issuer
of Letters of Credit hereunder, and its successors in such capacity as provided
in Section 2.11(i). The Issuing Bank may arrange for one or more Letters of
Credit to be issued by its Affiliates, other Lenders or their Affiliates, with
the prior approval of the Administrative Agent and such Lenders or Affiliates,
in which case the term "Issuing Bank" shall include any such Lender or Affiliate
with respect to Letters of Credit issued by it.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Company at such time. The LC Exposure of any Lender at any time shall be
its Pro Rata Share of the total LC Exposure at such time.
-17-
"LC Request" means a request by the Company for a Letter of Credit
pursuant to Section 2.11(b) in the form attached as Exhibit E hereto.
"LC Requisite Time" means 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Company shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or,
if such notice has not been received by the Company prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Company receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt.
"Letter of Credit" means a Dollar-denominated letter of credit of an
Issuing Bank issued pursuant to this Agreement or issued pursuant to any other
arrangement and incorporated as a "Letter of Credit" under this Agreement
pursuant to Section 2.11(b).
"Lender" means each lender from time to time party hereto.
"Lender Taxes" means, in the case of each Lender, the Administrative
Agent, each Eligible Assignee, and any Affiliate or Lending Office thereof: (a)
taxes imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts or capital and franchise taxes imposed on it, by
(i) any jurisdiction (or political subdivision thereof) in which it is organized
or maintains its principal office or Lending Office or (ii) any jurisdiction (or
political subdivision thereof) in which it is "doing business" (unless it would
not be doing business in such jurisdiction (or political subdivision thereof)
absent the Transactions), (b) any withholding taxes or other taxes based on
gross income imposed by the United States of America (other than withholding
taxes and taxes based on gross income resulting from or attributable to any
change in any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental Authority in
each case after the date hereof) or (c) any withholding taxes or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide the Company with the appropriate
form or forms required by Section 10.20, to the extent such forms are then
required by any Requirement of Law.
"Lending Office" means, as to any Lender, either its Domestic Lending
Office, Eurocurrency Lending Office or its Local Currency Lending Office, as the
context may require.
"LIBOR Margin Bid" has the meaning set forth in Section 2.03(b).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, lien (statutory or other) or other security interest or encumbrance
(including those created by, arising under or evidenced by any conditional sale
or other title retention agreement,
-18-
the interest of a lessor under a Capital Lease Obligation or the filing of any
financing statement naming the owner of the asset to which such lien relates as
debtor, under the UCC or any comparable law), but not including the interest of
a lessor under an Operating Lease.
"Loan" means any advance made or to be made by any Lender to the Company
as provided in Article II, and includes Committed Loans and Competitive Loans.
"Loan Documents" means, collectively, this Agreement, any Foreign
Borrower Joinder Agreements, the Guaranty, the Notes, any Letters of Credit and
the related applications and agreements, any Request for Extension of Credit,
any Compliance Certificate and any other agreements of any type or nature
hereafter executed and delivered by the Company or any of its Subsidiaries or
Affiliates to the Administrative Agent or to any Lender in any way relating to
or in furtherance of this Agreement, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Local Currency Lending Office" means, with respect to each Lender and
each Foreign Currency, the office, branch or affiliate of such Lender located in
the country of the Principal Financial Center for such Foreign Currency as it
may hereafter designate as its Local Currency Lending Office for such Foreign
Currency by notice to the Administrative Agent.
"Local Market IBOR" has the meaning specified in the definition of
"IBOR."
"Locally Funded" means, with respect to a Foreign Currency Loan, that
such Loan shall bear interest by reference to Local Market IBOR (as defined in
the definition of "IBOR") for the relevant Foreign Currency plus the Applicable
Amount, and that such Loan shall be made from the relevant Local Currency
Lending Office of the Lender making such Loan.
"London IBOR" has the meaning specified in the definition of "IBOR."
"Margin Stock" means "margin stock" as such term is defined in
Regulations T, U and X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations and condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole, (b) the ability of any Credit
Party to perform its material obligations under this Agreement, or (c) the
legality, validity, binding effect or enforceability of any Loan Document.
"Materially Underfunded Plan" means, at any time, a Plan or Plans having
aggregate Unfunded Pension Liabilities in excess of $10,000,000.
-19-
"Maturity Date" means July 31, 2007.
"Minimum Amount" means, with respect to each action described below, the
following amount set forth opposite such action (or, in respect of an action
relating to a Foreign Currency Loan, an amount of the applicable Foreign
Currency (rounded up to the nearest 1,000 British Pounds Sterling, Euros or
100,000 Japanese Yen, as the case may be) the Equivalent Amount of which is
equal to the Dollar amount set forth below):
Minimum Multiples
in excess of
Type of Action Minimum Amount Minimum Amount
------------------------------------------------ ------------- -----------------
Borrowing of, prepayment of or Conversion into, $5,000,000 $ 500,000
Base Rate Loans
Borrowing of, prepayment or Continuation of, or $5,000,000 $1,000,000
Conversion into, Dollar LIBOR Loans
Voluntary Reduction of Commitments $5,000,000 $1,000,000
Borrowing of, prepayment or Continuation of $5,000,000 $1,000,000
Foreign Currency Loans
Assignments $5,000,000 n/a
"Multiemployer Plan" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or been
obligated to make, contributions, but does not include (i) Multiemployer Plans
to which no member of the Controlled Group had withdrawal liability and an
obligation to contribute at all times following the enactment of the
Multiemployer Pension Plan Amendments Act of 1980, and (ii) Multiemployer Plans
as to which all members of the Controlled Group have both completely withdrawn
and paid the full amount of any withdrawal liability.
"Net Income" means, with respect to any fiscal period, for any Person
the consolidated net income of such Person and its consolidated subsidiaries,
determined in accordance with GAAP.
"Notes" means, collectively, the Committed Loan Notes and the
Competitive Loan Notes.
"Notice of Assignment and Acceptance" means a Notice of Assignment and
Acceptance substantially in the form of Exhibit G.
-20-
"Notice of Letter of Credit Withdrawal" means a request by the Company
for the withdrawal of a Letter of Credit pursuant to Section 2.11(j)
substantially in the form of Exhibit F.
"Notice of Lien" means any "notice of lien" or similar document intended
to be filed or recorded with any court, registry, recorder's office, central
filing office or other Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien securing obligations
owing to a Governmental Authority.
"Notice of Participation" means a Notice of Participation substantially
in the form of Exhibit I.
"Obligations" means all obligations of every kind or nature of each
Credit Party from time to time owed to the Administrative Agent, any Lender, any
Person entitled to indemnification, or any one or more of them, under any one or
more of the Loan Documents, whether for principal, interest, fees, expenses,
indemnification or otherwise, and whether absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, now existing or
hereafter arising, pursuant to the terms of any of the Loan Documents, and
including interest that accrues after the commencement of any Insolvency
Proceeding.
"Operating Lease" means, as applied to any Person, any lease of Property
which is not a Capital Lease other than any such lease under which that Person
is the lessor.
"Ordinary Course Guaranty Obligations" means any Guaranty Obligations of
any Person consisting of obligations in respect of surety bonds, letters of
credit (other than letters of credit in support of indebtedness for borrowed
money of any Person), performance bonds, leases, indemnities or similar
obligations, in each case incurred in connection with a transaction entered into
in the Ordinary Course of Business of such Person.
"Ordinary Course of Business" means, in respect of any transaction
involving any Person, the ordinary course of such Person's business, as
conducted by any such Person in accordance with past practice.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
and all applicable resolutions of the board of directors (or any committee
thereof) of such corporation relating to the foregoing or the organization of
such corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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"Permitted Accounts Receivable Financing" means a sale or discount of
accounts receivable of any Person (a) that does not involve the creation of a
Lien or negative pledge on any accounts receivable not so sold or discounted and
(b) that does not involve in the aggregate the sale or discount of accounts
receivable having a book value exceeding $100,000,000.
"Permitted Disposition" means a Disposition of (a) inventory or other
assets sold, leased or otherwise disposed of in the Ordinary Course of Business
of the Company or a Subsidiary, (b) Dispositions of inventory, or used, worn-out
or surplus equipment, all in the Ordinary Course of Business, (c) Dispositions
of equipment to the extent that such equipment is exchanged for credit against
the purchase price of similar replacement equipment, or the proceeds of such
sale are reasonably promptly applied to the purchase price of such replacement
equipment or where the Company or its Subsidiary determine in good faith that
the failure to replace such equipment will not be detrimental to the business of
the Company or its Subsidiary, (d) a Disposition to the Company or a Subsidiary,
(e) Dispositions of accounts receivable in connection with a Permitted Accounts
Receivable Financing, or (f) Dispositions identified on Schedule 7.02.
"Permitted Liens" means:
(a) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 6.07,
provided that no Notice of Lien has been filed or recorded under the
Code;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the Property subject thereto or which do not
in the aggregate with respect to any one Property so encumbered have a
Material Adverse Effect;
(c) Liens (other than any Lien imposed by ERISA) incurred or
pledges or deposits required in the Ordinary Course of Business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(d) (i) Liens on Property acquired by the Company or any of its
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such acquisition;
(ii) Liens existing on any asset of any person at the time such person
becomes a Subsidiary of the Company and not created in contemplation of
such event; (iii) Liens on any asset of any person existing at the time
such person is merged or consolidated with or into the Company or a
Subsidiary of the Company and not created in
-22-
contemplation of such event; (iv) Liens arising out of the refinancing,
extension, renewal or refunding of any obligations secured by any Lien
permitted by this clause (d); provided that such obligations are not
increased and are not secured by any additional assets; and (v) Liens
related to the acquisition, construction or alteration of Property
(including liens placed upon the acquired Property up to 270 days
following such acquisition, or completion of such construction or
alteration), including purchase money liens;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which do not in
any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of the
Company and its Subsidiaries;
(f) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth
by regulations promulgated by the Federal Reserve Board, and (ii) such
deposit account is not intended by the Company or any of its
Subsidiaries to provide collateral to the depository institution;
(g) Liens on the Property of the Company or any of its
Subsidiaries securing (i) the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, and (ii)
obligations on surety and appeal bonds, and (iii) other obligations of a
like nature incurred in the Ordinary Course of Business;
(h) Liens associated with a Permitted Accounts Receivable
Financing;
(i) Liens on Property or assets of a Subsidiary of the Company to
secure Indebtedness of such Subsidiary to the Company or its
Subsidiaries;
(j) Liens securing financing for all or a portion of the purchase
or construction cost of real Property acquired after the Closing Date to
be used in the Ordinary Course of the Business (provided that any such
Lien shall not encumber any other Property of the Company or its
Subsidiaries), including Capital Lease Obligations and the ownership by
third parties of assets capitalized as finance leases under GAAP;
(k) Liens arising from purchase money financing of equipment,
including Capital Lease Obligations and the ownership by third parties
of assets capitalized as finance leases under GAAP;
(l) Liens arising in the Ordinary Course of Business in favor of
a customer, which Liens are inherent in the government contracting
process; and
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(m) Liens on assets identified as "Restricted Cash" on the
Company's balance sheet which are payable to third parties.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Authority, or other
entity.
"Plan" means an employee pension benefit plan (as defined in Section
3(2) of ERISA) which any member of the Controlled Group sponsors or maintains or
to which the Company or member of the Controlled Group makes or is obligated to
make contributions, and which is subject to the provisions of Title IV of ERISA.
"Principal Financial Center" means (a) in the case of Canadian Dollars,
Toronto, Canada, (b) in the case of Euros, Frankfurt, Germany, (c) in the case
of Yen, Tokyo, Japan, (d) in the case of British Pounds Sterling, London, United
Kingdom, and (d) in the case of any Foreign Currency other than listed in
subclauses (a) through (d), as agreed between the Administrative Agent and the
Company on or prior to the date on which a Foreign Currency Loan in such other
Foreign Currency is made.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the percentage of
the combined Commitments set forth opposite the name of that Lender on Schedule
2.01.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064 (a) of ERISA) has made contributions at any time
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"Quarterly Payment Date" means each June 30, September 30, December 31
and March 31.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder for which the requirement of 30-day
notice has not been waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
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"Request for Extension of Credit" means a written request substantially
in the form of Exhibit A, duly completed and signed by a Responsible Officer.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its Property or to which the Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if the
Commitments are then in effect, Lenders having in the aggregate 51% or more of
the combined Commitments then in effect and (b) as of any date of determination
if the Commitments have then been terminated and there are Loans outstanding,
Lenders holding Loans aggregating 51% or more of the aggregate outstanding
principal amount of the Loans.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable telephonic notice to the intended recipient, promptly followed by a
written notice to such Person, or (b) irrevocable written notice to the intended
recipient, in each case (x) delivered or made to such Person at the address,
telephone number or facsimile number set forth on Schedule 10.02 or as otherwise
designated by such Person by Requisite Notice to the Administrative Agent and
(y) if made by any Credit Party, given by a Responsible Officer. Any written
notice shall be in the form, if any, prescribed in the applicable section and
may be given by facsimile provided such facsimile is promptly confirmed by a
telephone call to such recipient.
"Requisite Time" means, with respect to any of the actions listed below,
the time set forth opposite such action on or prior to the date set forth below
(all times are New York Time):
Action Time Date
-------------------------------------------------- --------- -------------
Borrowing of or Conversion into, Base Rate Loans 11:00 a.m. Relevant date
Prepayment of Base Rate Loans 1:00 p.m. Relevant date
Borrowing of, Continuation of, prepayment of or 1:00 p.m. 3 Business Days
Conversion into Dollar LIBOR Loans of 1, 2, 3 or 6 prior to relevant
months date
Borrowing of, Continuation of, prepayment of or 1:00 p.m. 3 Business Days
Conversion into, Dollar LIBOR Loans of 9 or 12 prior to relevant
months date
Initial Borrowing of Foreign Currency Loans by a 1:00 p.m. 5 Business Days
Foreign Borrower prior to Credit Date
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Action Time Date
-------------------------------------------------- --------- -------------
Other Borrowings, Continuations or prepayment of 1:00 p.m. 3 Business Days
Foreign Currency Loans prior to relevant
date
Voluntary Reduction of Commitments 1:00 p.m. 3 Business Days
prior to relevant
date
Funds made available by Lenders to Administrative 1:00 p.m. Relevant Date
Agent
Funds made available by applicable Credit Party 2:00 p.m. Relevant Date
to Administrative Agent
Termination of Commitment, replacement 1:00 p.m. 3 Business Days
prior to date of
termination or
replacement
"Responsible Officer" means the chief executive officer, the president,
the chief operating officer, the chief financial officer, the chief legal
officer, the treasurer or the controller of each of the Credit Parties. Any
document or certificate hereunder that is signed or executed by a Responsible
Officer shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the relevant Credit
Party and to have acted on behalf of such Credit Party.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary that meets the definition of "significant subsidiary" under Rule
1-02(w) of Regulation S-X promulgated by the U.S. Securities and Exchange
Commission.
"Statutory Reserve Rate" means, (a) for any Dollar LIBOR Loan, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate maximum reserve
percentages, if any (expressed as a decimal, rounded upward to the nearest
1/100th of 1%), in effect on the date Dollar LIBOR for such Interest Period is
determined (whether or not applicable to any Bank) under regulations issued from
time to time by the Federal Reserve Board for determining the reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") having a term comparable to such Interest Period and
(b) for any Foreign Currency Loan, a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the
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aggregate maximum reserve percentages, if any (expressed as a decimal, rounded
upward to the nearest 1/100th of 1%), in effect on the date IBOR for such
Interest Period is determined (whether or not applicable to any Bank) under
generally applicable regulations and guidelines for determining the reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding in the applicable Foreign
Currency having a term comparable to such Interest Period. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Synthetic Lease" means, with respect to any Person, (a) a so-called
synthetic lease, or (b) an agreement for the use or possession of property
creating obligations which do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized
as the Indebtedness of such Person (without regard to accounting treatment).
"364-Day Agreement" means the 364-Day credit agreement, dated as of July
31, 2002, among the Company, JPMorgan Chase Bank, as Administrative Agent, and
various lenders.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a Person other than a natural
Person, known by a Responsible Officer) making the representation, warranty or
other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been known by a
Responsible Officer).
"Transactions" means the execution, delivery and performance by the
Company of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"type" of Loan means (a) a Base Rate Loan, (b) a Dollar LIBOR Loan, (c)
a Competitive Loan bearing interest at an Absolute Rate, (d) a Competitive Loan
bearing interest based upon Adjusted Dollar LIBOR or (e) a Foreign Currency
Loan.
"Unfunded Pension Liabilities" means with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the
fair market value of all Plan
-27-
assets allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
"Yen" means lawful money of Japan.
Section 1.02. Performance; Time. Except as otherwise specifically
provided herein, whenever any performance obligation hereunder shall be stated
to be due or required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding Business Day. In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including."
If any provision of this Agreement refers to any action taken or to be taken by
any Person, or which such Person is prohibited from taking, such provision shall
be interpreted to encompass any and all means, direct or indirect, of taking, or
not taking, such action.
Section 1.03. Accounting Principles. Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied; provided, that, if the
Company notifies the Administrative Agent that the Company wishes to amend any
provision hereof to eliminate the effect of any change in GAAP (or if the
Administrative Agent notifies the Company that the Requisite Lenders wish to
amend any provision hereof for such purpose), then such provision shall be
applied on the basis of GAAP in effect immediately before the relevant change in
GAAP became effective, until either such notice is withdrawn or such provision
is amended in a manner satisfactory to the Company and the Requisite Lenders.
Section 1.04. Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any defined term
used in the singular shall refer to any one or more of the members of the
relevant class.
Section 1.05. Rounding. Any financial ratios required to be
maintained by the Company pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
Section 1.06. Exhibits and Schedules. All Exhibits and Schedules
to this Agreement are incorporated herein by this reference. A matter disclosed
on any Schedule shall be deemed disclosed on all Schedules.
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Section 1.07. References to "Subsidiaries". Any reference herein
to "the Company and its Subsidiaries", "any Borrower and its Subsidiaries", "any
Foreign Borrower and its Subsidiaries", "any Credit Party and its Subsidiaries"
or the like shall refer solely, as the case may be, to the Company, the
applicable Borrower, Foreign Borrower or Credit Party during such times, if any,
as the Company, such Borrower, Foreign Borrower or Credit Party shall have no
Subsidiaries.
Section 1.08. Miscellaneous Terms. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
ARTICLE II
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
Section 2.01. The Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally (and not jointly) agrees, during the
Availability Period (i) to make, Convert and Continue Dollar Loans to the
Company as the Company may request, and (ii) to make and Continue Foreign
Currency Loans to any Foreign Borrower as such Foreign Borrower may request;
provided, however, that in each case: (A) for any Lender, the sum of (1) the
aggregate LC Exposure of such Lender, (2) the aggregate principal amount of all
Dollar Loans made by such Lender, and (3) the Equivalent Amount of the aggregate
principal amount of all Foreign Currency Loans made by such Lender, shall not
exceed such Lender's Commitment at any time, (B) the sum of (1) the aggregate LC
Exposure of all Lenders, (2) the aggregate principal amount of all Dollar Loans
made by all Lenders, (3) the Equivalent Amount of the aggregate principal amount
of all Foreign Currency Loans made by all Lenders, and (4) the aggregate
principal amount of all Competitive Loans made by all Lenders, shall not exceed
the combined Commitments at any time, and (C) the Equivalent Amount of the
aggregate principal amount of all Foreign Currency Loans made by all Lenders
shall not exceed the Foreign Currency Limit at any time. Subject to the
foregoing and other terms and conditions hereof, Committed Loans may be
Borrowed, prepaid and reborrowed as set forth herein without premium or penalty.
The Borrower may Convert a Dollar LIBOR Loan to a Base Rate Loan or a Base Rate
Loan to a Dollar LIBOR Loan upon request, subject to the terms and conditions of
this Agreement. The Borrower may not Convert a Dollar Loan to a Foreign Currency
Loan, a Foreign Currency Loan to a Dollar Loan or a Loan in one Foreign Currency
to a Loan in any other Foreign Currency. Each Competitive Loan shall be made in
accordance with Section 2.03. The available Commitments also may be utilized by
the Company to obtain Letters of Credit in accordance with Section 2.11.
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(b) Committed Loans made by each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender in the Ordinary
Course of Business. Upon the request of any Lender made through the
Administrative Agent, such Lender's Committed Loans may be evidenced by one or
more Committed Loan Notes, instead of or in addition to loan accounts. (Each
such Lender may endorse on the schedules annexed to its Committed Loan Note the
date, amount and maturity of its Committed Loans and payments with respect
thereto.) Such loan accounts, records or Notes shall be conclusive absent
manifest error of the amount of such Committed Loans and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of any Credit Party to pay any amount owing with
respect to the Committed Loans.
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, Loans with no more than 15 different Interest Periods shall
be outstanding at any one time; provided that for the purposes of this sentence
only, "Loans" shall mean all Loans outstanding under this Agreement, plus all
loans outstanding under the 364-Day Credit Agreement.
(d) The Company may designate one or more Subsidiaries to become
Foreign Borrowers for purposes of receiving Foreign Currency Loans, provided
that, (i) such Subsidiary is, directly or indirectly through one or more
intermediaries, wholly-owned by the Company, (ii) such Subsidiary is neither
organized nor domiciled in any State of the United States of America or in the
District of Columbia, (iii) the Administrative Agent shall receive a duly
executed Foreign Borrower Joinder Agreement, together with such organization
documentation, certificates, opinions and other documentation and information,
as may be reasonably requested by the Administrative Agent to evidence
compliance with the conditions to the effectiveness of such Foreign Borrower
Joinder Agreement described in Section 4.03. Foreign Currency Loans shall be
Borrowed and Continued as Euromarket Funded unless the Administrative Agent,
each Lender and the applicable Foreign Borrower agree that such Foreign Currency
Loans shall be Locally Funded.
Section 2.02. Borrowings, Conversions and Continuations of
Committed Loans.
(a) A Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Committed Loans in a Minimum Amount by delivering a duly
completed Request for Extension of Credit by Requisite Notice to the
Administrative Agent not later than the Requisite Time. All Borrowings,
Conversions or Continuations in respect of Dollar Loans shall constitute
requests for Base Rate Loans and all Borrowings or Continuations in respect of
Foreign Currency Loans shall constitute requests for Foreign Currency Loans with
an Interest Period of one month, in each case unless properly and timely
otherwise designated as set forth in the prior sentence. In the case of Dollar
LIBOR Loans, each Lender shall promptly notify the Administrative Agent (who
shall
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promptly notify the applicable Borrower) whether such Lender, in its sole
discretion, consents to funding a Dollar LIBOR Loan for such requested Interest
Period(s) for such Borrowing. If any Lender does not so consent, Dollar LIBOR
Loans shall not be available for such Interest Period(s) for such Borrowing.
(b) Each Committed Loan shall be made as part of a Borrowing
consisting of Committed Loans made by the Lenders ratably in accordance with
their respective Commitments. Promptly following receipt of a Request for
Extension of Credit, the Administrative Agent shall notify each Lender of its
Pro Rata Share thereof by Requisite Notice. Each Lender shall make the funds for
its Committed Loan available to the Administrative Agent at the Administrative
Agent's Office not later than the Requisite Time on the Business Day specified
in such Request for Extension of Credit. Upon satisfaction or waiver of the
applicable conditions set forth in Article IV, all funds so received shall be
made available to Borrower.
(c) The Administrative Agent shall promptly notify the applicable
Borrower and the Lenders of Adjusted IBOR applicable to any IBOR Loan upon
determination of same.
(d) No Loans other than Base Rate Loans may be requested or
continued during the existence of a Default or Event of Default. During the
existence of a Default or Event of Default, the Requisite Lenders may determine
that (i) any or all of the then outstanding Dollar Loans that are Dollar LIBOR
Loans shall be Converted to Base Rate Loans and/or (ii) any or all of the
outstanding Foreign Currency Loans with an Interest Period greater than one
month shall be replaced by Foreign Currency Loans with an Interest Period of one
month. Such Conversion or replacement shall be effective upon notice to the
applicable Borrower from the Administrative Agent and shall continue so long as
such Default or Event of Default continues to exist, or in the case of Foreign
Currency Loans, the earlier expiration of the applicable Interest Period.
(e) If a Committed Loan is to be made on the same date that
another Committed Loan is due and payable, the applicable Borrower or the
Lenders, as the case may be, shall make available to the Administrative Agent
the net amount of funds giving effect to both such Committed Loans and the
effect for purposes of this Agreement shall be the same as if separate transfers
of funds had been made with respect to each such Committed Loan.
(f) The failure of any Lender to make any Committed Loan on any
date shall not relieve any other Lender of any obligation to make a Committed
Loan on such date, but no Lender shall be responsible for the failure of any
other Lender to so make its Committed Loan.
Section 2.03. Competitive Loans.
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(a) Subject to the terms and conditions hereof, at any time and
from time to time during the Availability Period, each Lender may in its sole
and absolute discretion make Competitive Loans to the Company in such principal
amounts as the Company may request; provided, however, that the sum of (i) the
aggregate LC Exposure of all Lenders, (ii) the aggregate principal amount of all
Dollar Loans made by all Lenders, (iii) the Equivalent Amount at any time of the
aggregate principal amount of all Foreign Currency Loans made by all Lenders,
and (iv) the aggregate principal amount of all Competitive Loans, shall not
exceed at any time the combined Commitments; provided, further, that the
outstanding Competitive Loans made by any Lender may exceed its Commitment. The
Competitive Loans shall be deemed to utilize the combined Commitments by an
amount equal to the aggregate outstanding principal amount thereof.
(b) The Company may irrevocably request Competitive Loans in a
Competitive Loan Minimum Amount therefor by delivering a duly completed
Competitive Bid Request by Requisite Notice not later than the Competitive Loan
Requisite Time therefor. Each Competitive Bid Request shall state whether a
Competitive Bid is requested on the basis of a fixed interest rate (an "Absolute
Rate Bid") or on the basis of a margin above or below Adjusted Dollar LIBOR (a
"LIBOR Margin Bid"). The Company may not request Competitive Bids for more than
three maturities nor request more than one type of Competitive Loan in a single
Competitive Bid Request. Unless the Administrative Agent otherwise agrees, in
its sole and absolute discretion, the Company may not submit a Competitive Bid
Request if it has submitted another Competitive Bid Request within the prior
five Business Days.
(c) No Competitive Bid Request shall be made for an Absolute Rate
Bid with a maturity of less than 14 days or more than 180 days, for a LIBOR
Margin Bid with a maturity other than one, two, three or six months, or in any
case with a maturity date subsequent to the Maturity Date. No more than ten
different maturities for Competitive Loans may be outstanding at any time.
(d) The Administrative Agent shall promptly notify the Lenders of
a Competitive Bid Request by delivering a written copy thereof to the Lenders.
Each Lender may, in its sole and absolute discretion, bid or not bid on all or a
portion of the Competitive Loans requested in such Competitive Bid Request by
delivering by Requisite Notice an irrevocable, duly completed Competitive Bid to
the Administrative Agent by the Competitive Loan Requisite Time for delivering
Competitive Bids. Any Competitive Bid received after such Competitive Loan
Requisite Time, that is in a form other than a duly completed Competitive Bid
Request, or that is otherwise not responsive to the Competitive Bid Request
shall be disregarded. A Lender may subsequently correct any Competitive Bid
containing a manifest error if it does so by the Competitive Loan Requisite Time
for delivering Competitive Bids. The Administrative Agent may, but shall not be
required to, notify any Lender of any manifest error it detects in such Lender's
Competitive Bid.
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(e) The Competitive Bid Maximum offered by a Lender for any
Competitive Loan(s) requested in a Competitive Bid may be less than the
principal amount of such Competitive Loan(s) requested by the Company, but shall
not be less than the Competitive Loan Minimum Amount for any Competitive Loan
for which such Lender is bidding. Each Competitive Bid shall expire unless
accepted by the Company prior to the Competitive Loan Requisite Time for
accepting Competitive Bids.
(f) The Administrative Agent shall promptly notify the Company of
the names of the Lenders providing conforming Competitive Bids and the terms of
such Competitive Bids. The Company may, in its sole and absolute discretion,
accept or reject any Competitive Bid, or any portion thereof, provided, that if
the Company accepts any Competitive Bid, or any portion thereof, the following
shall apply: (i) the Company must notify the Administrative Agent of its
acceptance of any Competitive Bids not later than the Competitive Loan Requisite
Time for doing so, (ii) the Company must accept all Absolute Rate Bids at all
lower fixed interest rates before accepting any portion of Absolute Rate Bids at
a higher fixed interest rate, (iii) the Company must accept all LIBOR Margin
Bids at all lower margins over Adjusted Dollar LIBOR before accepting any
portion of LIBOR Margin Bids at a higher margin over Adjusted Dollar LIBOR, (iv)
each Competitive Loan to be made must be in a Competitive Loan Minimum Amount
therefor, (v) if two or more Lenders have submitted a Competitive Bid at the
same fixed interest rate or margin, then the Company must accept either all of
such Competitive Bids or accept such Competitive Bids in the same proportion as
the Competitive Bid Maximum of each Lender for such Competitive Loan bears to
the aggregate Competitive Bid Maximums of all such Lenders for such Competitive
Loans (subject to clause (iv) above) and (vi) the Company may not accept
Competitive Bids for an aggregate amount in excess of the Competitive Loans
requested in its Competitive Bid Request.
(g) The Administrative Agent shall promptly notify each of the
Lenders whose Competitive Bid, or any portion thereof, has been accepted or
rejected by the Company by telephone, which notification shall promptly be
confirmed in writing, delivered in person or by telecopier to such Lenders. Any
Competitive Bid, or portion thereof, not timely accepted by the Company and/or
timely notified by the Administrative Agent to a Lender as having been accepted
shall be deemed rejected.
(h) In the case of a LIBOR Margin Bid, the Administrative Agent
shall determine Adjusted Dollar LIBOR on the date which is two Business Days
prior to the date of the proposed Competitive Loan, and shall promptly
thereafter notify the Company and the Lenders whose LIBOR Margin Bids were
accepted by the Company of such Adjusted Dollar LIBOR.
(i) Each Lender which has had a Competitive Bid, or portion
thereof, accepted by the Company shall make the funds for its Competitive
Loan(s) available to the Administrative Agent at the Administrative Agent's
Office not later than the Requisite Time for making such funds available on the
Business Day specified in such
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Competitive Loan Request. Upon satisfaction or waiver of the applicable
conditions set forth in Article IV, all funds so received shall be made
available to the Company.
(j) Each Lender's Competitive Loan shall be evidenced by that
Lender's Competitive Loan Note or by one or more loan accounts or records
maintained by such Lender in the Ordinary Course of Business, in each case
subject to Section 2.01 (b).
(k) Each Competitive Loan shall be due and payable on the
maturity date of such Competitive Loan.
Section 2.04. Prepayments.
(a) The applicable Borrower may at any time and from time to time
voluntarily prepay Committed Loans in a Minimum Amount after delivering an
irrevocable Requisite Notice not later than the Requisite Time for prepayments.
The Administrative Agent will promptly notify each Lender thereof and of such
Lender's Pro Rata Share of such prepayment. Each prepayment by a Borrower must
be made ratably to all outstanding Committed Loans of such Borrower borrowed on
the same day.
(b) If for any reason either (i) the sum of (A) the aggregate LC
Exposure of all Lenders, (B) the aggregate principal amount of all Dollar Loans
made by all Lenders, (C) the Equivalent Amount of the aggregate principal amount
of all Foreign Currency Loans made by all Lenders and (D) the aggregate
principal amount of all Competitive Loans made by all Lenders, exceeds the
combined Commitments in effect at any time or (ii) the Equivalent Amount of the
aggregate principal amount of all Foreign Currency Loans made by the Lenders
exceeds the Foreign Currency Limit, then upon written request of the
Administrative Agent the Company shall immediately prepay or cause one or more
Foreign Borrowers to immediately prepay Committed Loans sufficient to cure such
overage.
(c) Any prepayment of an IBOR Loan shall be accompanied by all
accrued interest thereon, together with the costs set forth in Section 3.05.
(d) Competitive Loans may not be prepaid unless (i) expressly so
provided in the Competitive Bid Request and Competitive Bid for such Competitive
Loan or (ii) otherwise agreed by the Company and the Lender making such
Competitive Loan after notice to the Administrative Agent.
(e) The Company may from time to time elect to prepay pursuant to
the Guaranty all or part of any Foreign Currency Loan of a Foreign Borrower and
such prepayment by the Company shall be made in the manner and subject to the
terms that a prepayment would be made by the Foreign Borrower under this
Agreement.
Section 2.05. Voluntary Reduction of Commitments.
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The Company shall have the right, at any time and from time to
time, without penalty or charge, upon giving Requisite Notice not later than the
Requisite Time, voluntarily to reduce, permanently and irrevocably, in a Minimum
Amount, or to terminate, the then unused portion of the Commitments, provided
that any such reduction or termination shall be accompanied by payment of all
accrued and unpaid Facility Fees with respect to the portion of the Commitments
being reduced or terminated. The Administrative Agent shall promptly notify the
Lenders of any reduction or termination of the Commitments under this Section.
Each Lender's Commitment shall be reduced by an amount equal to such Lender's
Pro Rata Share times the amount of such reduction.
Section 2.06. Principal and Interest.
(a) If not sooner paid, the outstanding principal amount of each
Committed Loan and Competitive Loan shall be due and payable on the Maturity
Date or, if such Loan is not Continued or Converted, at the end of the
applicable Interest Period.
(b) Each Borrower shall pay interest on the unpaid principal
amount of the Loans made to it (before and after default, before and after
maturity, before and after judgment, and before and after the commencement of
any Insolvency Proceeding) from the date borrowed until paid in full (whether at
stated maturity, by acceleration or otherwise) on each Interest Payment Date for
each type of Loan at a rate per annum equal to the applicable interest rate
determined in accordance with the definition of such type of Loan in this
Agreement, plus, in the case of IBOR Loans, the Applicable Amount.
(c) If any amount of principal of or interest on any Loan or any
other amount payable under any Loan Document is not paid in full when due
(whether by acceleration or otherwise) or, in the case of reimbursement
obligations under Section 2.11(e), one Business Day after the date such
reimbursement obligations accrues, each Borrower shall pay interest on such
unpaid amount from the date such amount becomes due (or, in in the case of
reimbursement obligations under Section 2.11(e), one Business Day after the date
such reimbursement obligation accrues) until the date such amount is paid in
full, and after as well as before any entry of judgment thereon, at a
fluctuating rate of interest rate equal to the Default Rate. Accrued and unpaid
interest on past due amounts (including, without limitation, interest on past
due interest) shall be compounded monthly, on the last day of each calendar
month, to the fullest extent permitted by Requirement of Law, and payable on
demand.
(d) Amounts due under this Agreement in respect of any Loan shall
be deemed paid for the purposes of this Agreement only, in the case of Dollar
Loans, to the extent paid in Dollars or, in the case of Foreign Currency Loans,
to the extent paid in the applicable Foreign Currency. If the Administrative
Agent receives any payment in respect of any Loan in any currency other than the
currency of such Loan (including upon enforcement of or collection of a
judgment), the Administrative Agent may in its sole
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discretion return such payment to the payor or convert such payment to the
currency of such Loan and apply the net proceeds to payment of amounts due in
respect of such Loan in accordance with this Agreement, provided that (i)
amounts due in respect of such Loan shall be deemed to have been paid by the
Borrower only to the extent of the net proceeds, if any, so applied by the
Administrative Agent and (ii) the Administrative Agent shall have no liability
to any Credit Party, Lender or any other Person arising out of or relating to
such conversion of funds or the exchange rate utilized in connection therewith,
in each case except to the extent of the Administrative Agent's own gross
negligence or willful misconduct.
Section 2.07. Fees.
(a) Facility Fee. The Company shall pay to the Administrative
Agent, for the account of each Lender, a Facility Fee equal to the Applicable
Amount for the Facility Fee times such Lender's Pro Rata Share of the daily
aggregate amount of the combined Commitments, (determined daily on a per annum
basis). The Facility Fee under the Commitments shall accrue from the Closing
Date to but excluding the Maturity Date and shall be payable quarterly in
arrears on each Quarterly Payment Date and on the Maturity Date. The Facility
Fee shall be calculated quarterly in arrears; if there is any change in the
Applicable Amount during any quarter, the average daily amount shall be computed
and multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter.
(b) Agency Fee. The Company shall pay to the Administrative Agent
an agency fee in such amounts and at such times as heretofore agreed upon by
letter agreement between the Company and the Administrative Agent. The agency
fee is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
(c) Letter of Credit Fees. The Company shall pay
(i) to the Administrative Agent for the account of each Lender a
participation fee with respect to its participations in Letters of
Credit, which shall accrue at the same Applicable Amount used to
determine the interest rate applicable to Committed Loans that are
Dollar LIBOR Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date
to but excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any LC
Exposure, and
(ii) to the Issuing Bank a fronting fee and fees with respect of
the issuance, amendment, renewal or extension of any Letter of Credit or
processing
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of drawings thereunder, as may be separately agreed upon between the
Company and the Issuing Bank.
Participation fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable as
agreed between the Issuing Bank and the Company. All participation fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
Section 2.08. Computation of Fees and Interest. Computations of
(i) interest with respect to Base Rate Loans and (ii) Local Market IBOR (but not
the Applicable Amount or any fees or other amounts) with respect to Foreign
Currency Loans in British Pounds Sterling shall be calculated on the basis of a
year of 365 or 366 days, as the case may be, and the actual number of days
elapsed; computations of interest on all other types of Loans and all fees and
other amounts under this Agreement shall be calculated on the basis of a year of
360 days and the actual number of days elapsed, which results in a higher yield
to the Lenders than a method based on a year of 365 or 366 days. Interest shall
accrue on each Loan for the day on which the Loan is made; interest shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid. Notwithstanding anything in this Agreement to the contrary,
interest in excess of the maximum amount permitted by any Requirement of Law
shall not accrue or be payable hereunder, and any amount paid as interest
hereunder which would otherwise be in excess of such maximum permitted amount
shall instead be treated as a payment of principal.
Section 2.09. Manner and Treatment of Payments among the Lenders,
Borrowers and the Administrative Agent.
(a) Unless otherwise provided herein, all payments by any Credit
Party or any Lender hereunder shall be made to the Administrative Agent at the
Administrative Agent's Office and account, or to any Person at such place and
account as the Administrative Agent may designate, in immediately available
funds without defense, setoff or counterclaim not later than the Requisite Time.
All payments received after the Requisite Time shall be deemed received on the
next succeeding Business Day. All payments of fees pursuant to Section 2.07
shall be payable by the Company in Dollars. All payments of principal of or
interest on Competitive Loans or Committed Loans other than Foreign Currency
Loans shall be payable in Dollars. All payments of principal of or interest in a
Foreign Currency Loan shall be payable in the applicable Foreign Currency.
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(b) Upon satisfaction of any applicable terms and conditions set
forth herein, the Administrative Agent shall promptly make any amounts received
in accordance with the prior subsection available in like funds received as
follows: (i) if payable to any Borrower, by crediting an account of such
Borrower maintained with the Administrative Agent in New York City and
designated by such Borrower in the applicable Request for Extension of Credit or
Competitive Bid Request or, if no account is maintained by such Borrower with
the Administrative Agent, then by wire transfer to an account designated in
writing by such Borrower and delivered to Administrative Agent, and (ii) if
payable to any Lender, by wire transfer to such Lender at the address specified
in Schedule 10.02. The Administrative Agent's determination, or any Lender's
determination not contradictory thereto, of any amount payable hereunder shall
be conclusive in the absence of manifest error.
(c) Subject to the definition of "Interest Period," if any
payment to be made by any Borrower shall come due on a day other than a Business
Day, payment shall instead be considered due on the next succeeding Business Day
and the extension of time shall be reflected in computing interest and fees.
(d) Unless any Borrower or Lender has notified the Administrative
Agent prior to the date any payment to be made by it is due, that it does not
intend to remit such payment, the Administrative Agent may, in its discretion,
assume that such Borrower or Lender, as the case may be, has timely remitted
such payment and may, in its discretion and in reliance thereon, make available
such payment to the Person entitled thereto. If such payment was not in fact
remitted to the Administrative Agent, then:
(i) if any Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date such
amount was made available by the Administrative Agent to such Lender to
the date such amount is repaid to the Administrative Agent at the
greater of (x) the Federal Funds Rate and (y) such rate as may be
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall
on the Business Day following such Credit Date pay to the Administrative
Agent the amount of such assumed payment made available to the
applicable Borrower, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Borrower to the date such amount is paid to
the Administrative Agent at the greater of (x) the Federal Funds Rate
and (y) such rate as may be determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitments or to prejudice any rights which the
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Administrative Agent or any Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(iii) if any Lender failed to make a payment funding a Committed
Loan, and fails to make such payment on the Business Day following the
Credit Date, the applicable Borrower shall repay such Lender's failed
payment funding of such Commitment Loan to the Administrative Agent
immediately upon receipt of notice from the Administrative Agent
regarding such failure to pay by any such Lender.
Section 2.10. Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Lender to obtain the funds for any Loan in any particular
place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place or
manner.
Section 2.11. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, the Company may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability Period.
In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Company to, or entered into by
the Company with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Notice of Issuance, Incorporation, Amendment, Renewal,
Extension; Certain Conditions. Whenever the Company desires to (i) have a Letter
of Credit issued hereunder, (ii) incorporate an existing letter of credit not
issued hereunder as a Letter of Credit for the purposes hereof or (iii) amend,
renew or extend a Letter of Credit outstanding hereunder, the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (not less than three Business Days in advance of the
requested date of issuance, incorporation, amendment, renewal or extension) an
LC Request; specifying information as provided in the form attached hereto as
Exhibit E and such other information as shall be necessary in the determination
of the Issuing Bank to prepare, incorporate, amend, renew or extend such Letter
of Credit. The date of issuance, incorporation, amendment, renewal or extension
specified in such LC Request shall be a Business Day, and the date on which such
Letter of Credit is to expire shall comply with paragraph (c) of this Section.
If requested by the Issuing Bank, the Company also shall submit a letter of
credit application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued,
incorporated, amended, renewed or extended only if (and upon issuance,
incorporation, amendment, renewal or extension of each Letter of Credit the
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Company shall be deemed to represent and warrant that), after giving effect to
such issuance, incorporation, amendment, renewal or extension (i) the LC
Exposure shall not exceed $50,000,000 and (ii) the sum of (A) the aggregate LC
Exposure of all Lenders, (B) the aggregate principal amount of all Dollar Loans
made by all Lenders, (C) the Equivalent Amount at any time of the aggregate
principal amount of all Foreign Currency Loans made by all Lenders and (D) the
aggregate principal amount of all Competitive Loans made by all Lenders, shall
not exceed the combined Commitments in effect at any time.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the expiration date
requested in the LC Request and (ii) the date that is five Business Days prior
to the Maturity Date.
(d) Participations. By the issuance or incorporation of a Letter
of Credit (or an amendment to a Letter of Credit increasing the amount thereof)
pursuant to Section 2.11(b) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and
each Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Pro Rata Share of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Pro Rata Share of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Company for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever (other than a withdrawal of such Letter of Credit from
this Agreement pursuant to Section 2.11(j)), including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Company shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than the LC Requisite Time; provided that, if such LC
Disbursement is not less than $5,000,000, the Company may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.01 and 2.02 that such payment be financed with a Dollar LIBOR Loan or Base
Rate Loan in an equivalent amount and, to the extent so financed, the Company's
obligation to make such payment shall be discharged and replaced by the
resulting Dollar LIBOR Loan or Base Rate Loan. If the Company fails to make such
payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the
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Company in respect thereof and such Lender's Pro Rata Share thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Pro Rata Share of the payment then due from the Company, in the same
manner as provided in Section 2.09 with respect to Loans made by such Lender
(and the terms and conditions of Section 2.09 shall apply in the same manner to
all the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Company pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear. Any payment made by
a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of Dollar LIBOR Loans or Base Rate Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance, incorporation, transfer or withdrawal of any
Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Company to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Company to the extent permitted by
applicable law) suffered by the Company that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
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misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to Base Rate Loans; provided that, if the
Company fails to reimburse such LC Disbursement on the Business Day after such
reimbursement is due pursuant to paragraph (e) of this Section, then Section
2.06(c) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the Issuing Bank, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the extent
of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.07(c). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued or incorporated thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall
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remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Withdrawal of Outstanding Letters of Credit from Agreement.
The Company may, with the consent of the Issuing Bank issuing such Letter of
Credit, which consent may be given or withheld in its sole discretion, elect to
have any undrawn Letter of Credit issued hereunder no longer deemed to be a
Letter of Credit outstanding hereunder. The Company may make such election by
delivering to the Administrative Agent a Notice of Letter of Credit Withdrawal,
signed by the Company and the Issuing Bank, in the form attached as Exhibit F,
whereupon such letter of credit shall cease to be Letter of Credit for all
purposes hereof.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes. Each payment of any amount payable by any
Borrower under this Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any Applicable Taxes. To the
extent that any Borrower is obligated by any Requirement of Law to make any
deduction or withholding on account of Applicable Taxes from any amount payable
to any Lender under this Agreement, such Borrower shall (i) make such deduction
or withholding and pay the same to the relevant Governmental Authority and (ii)
pay such additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Applicable Tax amount equal to the amount to
which that Lender would have been entitled under this Agreement absent such
deduction or withholding. If a Lender shall become aware that receipt of such a
payment resulted in an excess payment or credit to that Lender on account of
such Applicable Taxes, that Lender shall promptly refund such excess to such
Borrower. In addition, if any Governmental Authority imposes any penalties,
interest or other liabilities on any Lender by reason of any Borrower failing to
deduct or withhold sufficient amounts on account of Applicable Taxes, or
otherwise, such Borrower shall indemnify such Lender against such penalties,
interest or other liabilities; provided, however, that such Borrower shall not
be obligated to indemnify any Lender for such amounts to the extent arising from
such Lender's failure to act in good faith in promptly notifying such Borrower
thereof within 45 days from the date on which such Lender became aware of such
penalties, interest or other liabilities. Payment by any Borrower under this
Section shall be made within 30 days from the date any Lender makes written
demand for indemnification hereunder, which demand shall set forth in reasonable
detail the calculation of the amount being requested from such Borrower. If a
Lender shall become aware that it is entitled to receive a refund or credit from
a relevant Governmental Authority directly attributable to Applicable Taxes as
to which it has been indemnified by any Borrower pursuant to this Section, it
shall promptly notify such
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Borrower of the availability of such refund or credit and shall, within 30 days
after receipt of a request by such Borrower (whether as a result of notification
that it has made to such Borrower or otherwise), make a claim to such
Governmental Authority for such refund or credit at such Borrower's expense so
long as making such a claim is not inconsistent with such Lender's internal
policies and is not disadvantageous to such Lender.
Section 3.02. Illegality.
(a) If any Lender shall determine that the introduction of any
Requirement of Law after the date hereof, or any change in any Requirement of
Law or in the interpretation or administration thereof after the date hereof,
has made it unlawful, or that any central bank or other Governmental Authority
has asserted after the date hereof that it is unlawful, for such Lender or its
Lending Office to make IBOR Loans, then, on notice thereof by such Lender to the
Company (with a copy to the Administrative Agent), the obligation of such Lender
to make IBOR Loans shall be suspended until such Lender shall have notified the
Company (with a copy to the Administrative Agent) that the circumstances giving
rise to such determination no longer exist; provided, that, if the designation
of an alternative branch or lending office of the Lender will permit the Lender
to make or maintain such IBOR Loans, the Lender will designate such alternative
branch or lending office, subject to its determination that such designation is
not disadvantageous to such Lender.
(b) If any Lender shall determine that it is unlawful to maintain
any IBOR Loan, the applicable Borrower shall prepay in full all IBOR Loans then
outstanding, together with interest accrued thereon, either on the last day of
the Interest Period thereof if such Lender may lawfully continue to maintain
such IBOR Loans to such day, or immediately, if the Lender may not lawfully
continue to maintain such IBOR Loans, together with any amounts required to be
paid in connection therewith pursuant to Section 3.05.
Section 3.03. Increased Costs and Reduction of Return. If any
Lender shall determine that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of Adjusted IBOR) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law, provided that if such guideline or
request does not have the force of law, compliance therewith is customary for
banks regulated in a manner similar to such Lender), after the date hereof,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Loans, then the Company shall be liable for,
and shall from time to time, within 10 Business Days after demand therefor by
such Lender, pay to such Lender additional amounts as are sufficient to
compensate such Lender for such increased costs; provided, however, that, if the
designation of an alternative branch or lending office of
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the Lender will avoid or reduce the amount of such increased costs, the Lender
will designate such alternative branch or lending office, subject to its
determination that such designation is not disadvantageous to such Lender.
Section 3.04. Capital Adequacy. If any Lender shall determine
that (a) the introduction after the date hereof of any Capital Adequacy
Regulation, (b) any change after the date hereof in any Capital Adequacy
Regulation, (c) any change after the date hereof in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (d) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender, with any Capital Adequacy Regulation;
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines that
the amount of such capital is increased as a consequence of its Commitments,
Loans, credits or obligations under this Agreement, then, within 10 Business
Days after demand of such Lender, the Company shall upon demand pay to such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase; provided, however, that,
if the designation of an alternative branch or lending office of the Lender will
avoid or reduce such increased amount the Lender will designate such alternative
branch or lending office, subject to its determination that such designation is
not disadvantageous to such Lender.
Section 3.05. Breakfunding Costs. Each Borrower agrees to
reimburse each Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of: (a) the failure of
such Borrower to make any payment or prepayment of principal of any IBOR Loan
(including payments made after any acceleration thereof); (b) the failure of
such Borrower to Borrow, Continue or Convert an IBOR Loan after such Borrower
has given a Request for Extension of Credit, (c) if caused by a Credit Party or
as a result of any acceleration of the Loans by reason of a Default or Event of
Default, the prepayment of an IBOR Loan on a day which is not the last day of
the Interest Period with respect thereto, or (d) if caused by a Credit Party or
required by the Requisite Lenders pursuant to Section 2.02(d), the Conversion of
any Dollar LIBOR Loan to a Base Rate Loan or the replacement of any Foreign
Currency Loan with a Foreign Currency Loan with an Interest Period of one month;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its IBOR Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. Solely
for purposes of calculating amounts payable by any Borrower to a Lender under
this Section, each IBOR Loan (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at
Adjusted IBOR used in determining Adjusted IBOR for such IBOR Loan by a matching
deposit or other
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borrowing in the relevant currency in the interbank deposit market for a
comparable amount and for a comparable period, whether or not such IBOR Loan is
in fact so funded.
Section 3.06. Inability to Determine Rates.
If the Requisite Lenders shall have advised the Agent of the
Requisite Lenders' determination that for any reason adequate and reasonable
means do not exist for ascertaining Adjusted IBOR for any requested Interest
Period with respect to a proposed IBOR Loan or that Adjusted IBOR for any
requested Interest Period with respect to a proposed IBOR Loan does not
adequately and fairly reflect the cost to such Lender of funding such Loan, the
Administrative Agent will forthwith give notice of such determination to the
Company. Thereafter, the obligation of the Lenders to make or maintain IBOR
Loans, as the case may be, hereunder shall be suspended until the Requisite
Lenders revoke such notice in writing to the Company and the Administrative
Agent; provided, however, that no outstanding IBOR Loan shall be terminated
prior to the expiration of the Interest Period unless required by law. Upon
receipt of such notice, any Borrower may revoke any Request for Extension of
Credit then submitted by it. If the Company does not revoke such notice, any
Dollar Loans requested in such notice shall be made, Converted or Continued as
Base Rate Loans instead of Dollar LIBOR Loans.
Section 3.07. Matters Applicable to all Requests for
Compensation.
(a) No Borrower shall be required to compensate any Lender under
Section 3.03 or 3.04 for amounts allocable to any period more than 30 days prior
to the date that such Lender initially notifies such Borrower that it intends to
claim compensation under such Sections; provided, however, that if such claim
relates to any cost or increase that has been retroactively imposed upon such
Lender, such Borrower shall be required to compensate such Lender for amounts
allocable to the period since the date such cost or increase was so imposed upon
such Lender, provided that such Lender notifies such Borrower that it intends to
claim such compensation within 60 days of such retroactive cost or increase
having been imposed.
(b) The Administrative Agent and any Lender shall provide
reasonable detail to the applicable Borrower regarding the manner in which the
amount of any payment to the Administrative Agent or that Lender under this
Article III has been determined, concurrently with demand for such payment. The
Administrative Agent's or any Lender's determination of any amount payable under
this Article III shall be conclusive in the absence of manifest error.
(c) For purposes of calculating amounts payable under this
Article III any Loans shall be deemed to have been funded at the underlying
applicable interest rate set forth in the definition thereof whether or not such
Loans was, in fact, so funded.
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(d) All obligations of any Borrower under this Article III shall
survive termination of the Commitments and payment in full of all Loans.
(e) Upon (i) any Borrower becoming obligated for any taxes with
respect to any Lender pursuant to Section 3.01, (ii) any Lender making a claim
for compensation under Section 3.03 or Section 3.04, or (iii) any Lender
invoking Section 3.06, such Lender, upon not less than 10 Business Days'
Requisite Notice from the applicable Borrower (with a copy to the Administrative
Agent), shall execute and deliver a Notice of Assignment and Acceptance covering
that Lender's Pro Rata Share in favor of such Eligible Assignee as such Borrower
may designate, subject to payment in full by such Eligible Assignee of all
principal, interest, compensation, fees and other amounts owing to such Lender
through the date of assignment, including without limitation all amounts owing
under this Article III. Upon the removal of any Lender, it shall be released
from all obligations and liabilities under any Loan Document. An assignment
pursuant to this Section shall be governed by the provisions of Section 10.05
other than the Minimum Amount limitation therein contained. Alternatively, the
Company may, upon 10 Business Days' notice to the Administrative Agent (who
shall notify each Lender) reduce the combined Commitments by an amount equal to
that Lender's Pro Rata Share (and, for this purpose, no Minimum Amounts shall
apply), and in connection therewith, deliver to the Administrative Agent for the
account of such Lender, the amounts, described in the first sentence above and
release such Lender from its Pro Rata Share.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions Precedent to Closing Date.
(a) The effectiveness of this Agreement is subject to the
condition that the Administrative Agent shall have received on or before the
Closing Date all of the following, in form and substance reasonably satisfactory
to ▇.▇. ▇▇▇▇▇▇ Securities Inc., JPMorgan Chase Bank, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
and all Lenders:
(i) Credit Agreement. This Agreement executed by the Company, the
Administrative Agent, all Lenders and the Issuing Bank;
(ii) Guaranty. The Guaranty executed by the Company and the
Administrative Agent.
(iii) Notes. If requested by a Lender, Notes executed by the
Company in favor of such Lender;
(iv) Resolutions; Incumbency of the Company. (A) Copies of the
resolutions of the board of directors of the Company approving and
authorizing
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the execution, delivery and performance by the Company of the Agreement
and the other Loan Documents to be delivered by the Company hereunder,
and authorizing the borrowing of the Loans, certified as of the Closing
Date by the Secretary or an Assistant Secretary of the Company and (B) a
certificate of the Secretary or Assistant Secretary of the Company (x)
certifying the names and true signatures of the officers of the Company
authorized to execute, deliver and perform the Loan Documents to be
delivered by the Company hereunder, and (y) designating the officers to
be deemed Responsible Officers under this Agreement, and certifying the
names and true signature of such Responsible Officers;
(v) Articles of Incorporation; By-Laws and Good Standing of the
Company. Each of the following documents: (A) the articles or
certificate of incorporation of the Company as in effect on the Closing
Date, certified by the Secretary of State of the state of incorporation
of the Company as of a recent date, and the bylaws of the Company as in
effect on the Closing Date, certified by the Secretary or Assistant
Secretary of the Company as of the Closing Date; and (B) a good standing
certificate for the Company from the Secretary of State of Delaware as
of a recent date;
(vi) Opinion of Counsel. An opinion of counsel for the Company
and addressed to the Administrative Agent and the Lenders substantially
in the form of Exhibit H;
(vii) Officer's Certificate. A certificate of a Responsible
Officer dated the Closing Date certifying that (A) the representations
and warranties contained in Article V are true and correct in all
material respects, (B) no Default or Event of Default has occurred and
is continuing, and (C) there has occurred since January 31, 2002, no
event or circumstance that could reasonably be expected to result in a
Material Adverse Effect;
(viii) Other Documents. Such other approvals, opinions or
documents as ▇.▇. ▇▇▇▇▇▇ Securities Inc., JPMorgan Chase Bank, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and the Lenders may reasonably request by notice to
the Company prior to the Closing Date;
(ix) Termination of Existing Agreement. Evidence that the Company
has terminated, or concurrently with the initial funding hereunder will
be terminating, all commitments under the Existing Agreement and shall
have paid all amounts owing to the Lenders thereunder; and
(x) Payment of Attorney's Costs. All Attorney Costs of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 10.04, and invoiced to the Company
prior to the initial Extension of Credit under this Agreement, shall
have been paid.
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Section 4.02. Any Extensions of Credit. The obligation of each
Lender to make any Extension of Credit (other than a Foreign Currency Loan) and
of the Issuing Bank to issue any Letter of Credit, are subject to the
satisfaction of the following conditions precedent on the relevant Credit Date:
(a) Request for Extension of Credit. The Administrative Agent
shall have timely received a duly completed (i) Request for Extension of Credit
by Requisite Notice by the Requisite Time or (ii) LC Request by Requisite Notice
by the LC Requisite Time;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in Article V shall
be true and correct in all material respects on and as of such Credit Date with
the same effect as if made on and as of such date, except where such
representations and warranties expressly relate to an earlier date;
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Extension of Credit or issuance of such Letter
of Credit.
Each Request for Extension of Credit or LC Request shall constitute a
representation and warranty by the Company, as of the date of each such request
and as of the Credit Date that the conditions in this Section 4.02 are
satisfied.
Section 4.03. Foreign Currency Loans.
(a) The effectiveness of any Foreign Borrower Joinder Agreement
is subject to the condition that the Administrative Agent shall have received on
or prior to the date of effectiveness thereof (the "Effective Date") all of the
following, in form and substance reasonably satisfactory to the Administrative
Agent:
(i) Foreign Borrower Joinder Agreement. A Foreign Borrower
Joinder Agreement executed by the Company and the applicable Foreign
Borrower;
(ii) Notes. If requested by a Lender, Notes executed by such
Foreign Borrower in favor of such Lender.
(iii) Resolutions, Incumbency of Foreign Borrower. (A) Copies of
the resolutions of the board of directors of such Foreign Borrower
approving and authorizing the execution, delivery and performance by
such Foreign Borrower of the Foreign Borrower Joinder Agreement and
other Loan Documents to be delivered by such Foreign Borrower hereunder,
and authorizing the borrowing of the Foreign Currency Loans, certified
as of the date of the borrowing of the initial Foreign Currency Loan by
the Secretary or an Assistant Secretary of such Foreign Borrower and (B)
a certificate of the Secretary or Assistant Secretary of such
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Foreign Borrower (x) certifying the names and true signatures of the
officers of such Foreign Borrower authorized to execute, deliver and
perform the Foreign Borrower Joinder Agreement and other Loan Documents
to be delivered by the Foreign Borrower hereunder, and (y) designating
the officers to be deemed Responsible Officers under this Agreement, and
certifying the names and true signatures of such Responsible Officers.
(iv) Articles of Incorporation; By-Laws and Good Standing of
Foreign Borrower. Each of the following documents: (A) the articles or
certificate of incorporation of such Foreign Borrower as in effect on
the Effective Date, certified by an appropriate government agency or
similar body of the jurisdiction of incorporation of such Foreign
Borrower as of a recent date, and the bylaws of such Foreign Borrower as
in effect on the Effective Date, certified by the Secretary or Assistant
Secretary of such Foreign Borrower as of the Effective Date; and (B) a
good standing certificate for such Foreign Borrower as of a recent date
in form and substance satisfactory to the Administrative Agent;
(v) Opinion of Counsel. An opinion of counsel for such Foreign
Borrower in form and substance acceptable to the Administrative Agent
and addressed to the Administrative Agent and the Lenders;
(vi) Other Documents. Such other approvals, opinions or documents
as the Administrative Agent may reasonably request by notice to such
Foreign Borrower prior to the Effective Date;
(vii) Payment of Attorney's Costs. All Attorney Costs of the
Administrative Agent in connection with such Foreign Loan payable
pursuant to Section 10.04, and invoiced to such Foreign Borrower prior
to the date of initial borrowing of the Foreign Currency Loan under this
Agreement, shall have been paid.
(b) The obligation of each Lender to make any Foreign Currency
Loan is subject to effectiveness of a Foreign Borrower Joinder Agreement in
respect of the applicable Foreign Borrower and the satisfaction of the following
conditions precedent on the relevant Credit Date:
(i) Request for Extension of Credit. The Administrative Agent
shall have timely received a duly completed Request for Extension of
Credit by the applicable Foreign Borrower for such Foreign Currency Loan
by Requisite Notice by the Requisite Time, signed by the Company in
acknowledgement of its guaranty of such Foreign Currency Loan pursuant
to this Agreement;
(ii) Continuation of Representations and Warranties. The
representations and warranties made by the Credit Parties contained in
Article V shall be true and correct in all material respects on and as
of such Credit Date with
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the same effect as if made on and as of such date, except where such
representations and warranties expressly relate to an earlier date;
(iii) No Existing Default. No Default or Event of Default shall
exist or shall result from such Extension of Credit.
Each Request for Extension of Credit for a Foreign Currency Loan shall
constitute a representation and warranty by each Credit Party, as of the date of
each such Request and as of the applicable Credit Date that the conditions in
this Section 4.03 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company and, solely to the extent such representation and warranty
relates to such Foreign Borrower or its Subsidiaries, each Foreign Borrower
represents and warrants to the Administrative Agent and the Lenders that:
Section 5.01. Corporate Existence and Power. Each Credit Party
and each of its corporate Subsidiaries: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has the corporate power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and execute, deliver, and perform its obligations, if any, under, the
Loan Documents; (c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect; and (d) is in compliance with every
Requirement of Law except where such noncompliance would not have a Material
Adverse Effect. Each Foreign Borrower is, directly or indirectly through one or
more intermediaries, wholly-owned by the Company; and no Foreign Borrower is
organized under the laws of any State of the United States of America or in the
District of Columbia.
Section 5.02. Corporate Authorization; No Contravention. The
execution, delivery and performance by each Credit Party of each Loan Document
to which it is a party, have been duly authorized by all necessary corporate
action, and do not and will not: (a) contravene the terms of any of its
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing any
material Contractual Obligation to which it is a party or any order, injunction,
writ or decree of any Governmental Authority to which it or its Property is
subject; or (c) violate any Requirement of Law applicable to it.
Section 5.03. Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution,
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delivery or performance by any Credit Party of any Loan Document to which it is
a party, other than routine filings required to be made by it in the Ordinary
Course of Business after the date hereof.
Section 5.04. Binding Effect. Each Loan Document to which any
Credit Party is a party constitutes the legal, valid and binding obligations of
each such Credit Party, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
Section 5.05. Litigation. Except as disclosed on Schedule 5.05,
there are no actions, suits, investigations, proceedings, claims or disputes
pending or threatened, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, its Subsidiaries or any of their
respective Properties which: (a) purport to affect or pertain to this Agreement,
or any other Loan Document, or any of the Transactions; or (b) have a reasonable
possibility of an adverse decision which would have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority against any Credit
Party purporting to enjoin or restrain the execution, delivery and performance
of this Agreement or any other Loan Document, or directing that the Transactions
not be consummated as herein or therein provided.
Section 5.06. No Event of Default.
(a) No Event of Default exists or would result from the incurring
of any Obligations by any Credit Party.
(b) Except as disclosed on Schedule 5.06, neither the Company nor
any of its Subsidiaries is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, would reasonably be expected to have a Material Adverse Effect.
Section 5.07. ERISA Compliance.
(a) Schedule 5.07 lists all Plans maintained or sponsored by the
Company or to which it is obligated to contribute, and separately identifies
Plans intended to be Qualified Plans and Multiemployer Plans. Each Plan other
than a Multiemployer Plan is in compliance, and, with respect to each
Multiemployer Plan, the Company has no knowledge that such Multiemployer Plan is
not in compliance, in all material respects with the applicable provisions of
ERISA, the Code and other Federal or applicable state law that is not preempted
by ERISA. Each Qualified Plan has been determined by the Internal Revenue
Service ("IRS") to qualify under Section 401 of the Code, and the trusts created
thereunder have been determined to be exempt from tax under the provisions of
Section 501 of the Code, and to the best knowledge of the
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Company nothing has occurred which would cause the loss of such qualification or
tax-exempt status.
(b) There is no outstanding liability (excluding PBGC premiums
due but not delinquent under Section 4001 of ERISA) under Title IV of ERISA with
respect to any Plan maintained or sponsored by the Company or any ERISA
Affiliate (as to which the Company is or may reasonably be expected to be
liable), nor with respect to any Plan to which the Company or any ERISA
Affiliate (wherein the Company is or may be liable) contributes or is obligated
to contribute, which would reasonably be expected to have a Material Adverse
Effect. None of the Qualified Plans has Unfunded Pension Liabilities as to which
the Company is or may be liable, and which would reasonably be expected to have
a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan maintained or sponsored by the Company or to
which the Company is obligated to contribute and as to which the Company is or
may reasonably be expected to be liable, and which would reasonably be expected
to have a Material Adverse Effect. There are no pending or, to the best
knowledge of the Company, threatened claims, actions or lawsuits, other than
routine claims for benefits in the usual and ordinary course, asserted or
instituted against (i) any Plan maintained or sponsored by the Company or its
assets, (ii) any member of the Controlled Group with respect to any Qualified
Plan of the Company, or (iii) any fiduciary with respect to any Plan for which
the Company may be directly or indirectly liable, through indemnification
obligations or otherwise which in each case would reasonably be expected to have
a Material Adverse Effect. The Company has not transferred any Unfunded Pension
Liability outside of the Controlled Group or otherwise engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA which has a reasonable
likelihood of having a Material Adverse Effect.
Section 5.08. Regulations T, U and X. Neither any of the Letters
of Credit outstanding hereunder nor the proceeds of any Loan hereunder will be
used, in whole or in part, to purchase or carry, or to extend credit to others
for the purpose of purchasing or carrying, any Margin Stock in violation of
Regulations T, U and X.
Section 5.09. Taxes. Each Credit Party and its Subsidiaries have
filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP.
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Section 5.10. Financial Condition.
(a) The audited consolidated financial statements of financial
condition of the Company and its Subsidiaries, and the related consolidated
statements of operations, shareholders' equity and cash flows (i) as of and for
the Fiscal Year ended January 31, 2002, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended by April 30, 2002: (A) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; and (B) are
complete and accurate in all material respects and fairly present, in all
material respects, the financial condition of the Company and its consolidated
subsidiaries as of the date thereof and results of operations for the period
covered thereby.
(b) Since January 31, 2002, there has been no Material Adverse
Effect.
(c) Each Foreign Borrower is "solvent" within the meaning given
such term or similar terms under laws applicable to such Person, if any,
prohibiting such Person from borrowing the Loan from the Lenders requested by or
outstanding to such Person or prohibiting the Lenders from making such Loan to
such Person (or any such laws that limit or restrict the Lenders' rights to
enforce their rights and remedies under both this Agreement and the Guaranty) on
account of such Person's financial condition at the time such Loan is made.
Section 5.11. Environmental Matters. To the knowledge of the
Responsible Officers of the Company, the on-going operations of the Company and
each of its Subsidiaries comply in all respects with all Environmental Laws,
except such non-compliance which would not reasonably be likely to have a
Material Adverse Effect. To the knowledge of the Responsible Officers of the
Company, the Company and each of its Subsidiaries have obtained all licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its ordinary course operations, all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits, except where the failure to obtain or maintain such
Environmental Permits or such noncompliance would not be reasonably likely to
have a Material Adverse Effect.
Section 5.12. Subsidiaries. As of the Closing Date, the Company
has no Subsidiaries other than those specifically disclosed on Schedule 5.12.
Section 5.13. Insurance. The material real Properties of the
Company and its Subsidiaries are insured with financially sound and reputable
insurance companies (except to the extent self-insurance is permitted pursuant
to Section 6.06), in such amounts, with such deductibles and covering such risks
as are customarily carried by
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companies engaged in similar businesses and owning similar Properties in
localities where the Company or such Subsidiary operates.
Section 5.14. Full Disclosure. The Company has made available to
the Lenders all material agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject and all reports
or other filings made by the Company under the Exchange Act or Securities Act,
and disclosed, through the reports and other filings made by the Company under
the Exchange Act or Securities Act or otherwise, all other matters known to it
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information certified
as being true and correct by or on behalf of the Company to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
certified) contains any untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Company represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 5.15. Public Utility Holding Company Act; Investment
Company Act. Neither the Company nor any of its Subsidiaries are a "holding
company", or a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended. The Company is
not and is not required to be registered as an "investment company" under the
Investment Company Act of 1940.
Section 5.16. Title to Properties.
(a) The Company and each of its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all real Property
necessary or used in the ordinary conduct of its business, except for Liens
permitted by Section 7.01 and for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b) The Company and each of its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force:
Section 6.01. Financial Statements. The Company shall deliver to
the Administrative Agent, with sufficient copies for each Lender or via
electronic image:
(a) as soon as available, but not later than 120 days after the
end of each Fiscal Year, a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
statements of income and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous year, and accompanied by
the opinion of Deloitte & Touche LLP or another nationally-recognized
independent public accounting firm which report shall state that such
consolidated financial statements present fairly, in all material respects, the
financial position of the Company and its Subsidiaries for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years. Such
opinion shall not be qualified or limited because of a restricted or limited
examination by such accountant of any material portion of the Company's or any
Subsidiary's records; and
(b) as soon as available, but not later than 60 days after the
end of each of the first three Fiscal Quarters of each year, a copy of the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of such quarter and the related consolidated statements of income and
cash flows for the period commencing on the first day and ending on the last day
of such quarter, setting forth the financial position and the results of
operations of the Company and its Subsidiaries in conformity with GAAP applied
on a basis consistent with prior years, subject to changes resulting from audit
and normal year-end adjustments.
Section 6.02. Certificates; Other Information. The Company shall
deliver to the Administrative Agent, with sufficient copies for each Lender or
via electronic image:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and 6.01(b) a Compliance Certificate signed by a
Responsible Officer; and
(b) promptly, such additional business, financial, corporate
affairs and other information in form and detail satisfactory to the Agent and
the Requisite Lenders as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
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Section 6.03. Notices. Promptly upon a Responsible Officer of any
Credit Party becoming aware of the same, such Credit Party shall promptly notify
the Administrative Agent (who shall notify each Lender)
(a) of the occurrence of any Default or Event of Default;
(b) of any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between such Credit Party or any of its
Subsidiaries and any Governmental Authority or any Person which would reasonably
be expected to have a Material Adverse Effect;
(c) upon, but in no event later than 10 days after, a Responsible
Officer becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Company, any of its Subsidiaries or any of their respective Properties
pursuant to any applicable Environmental Laws, and (ii) any other material
Environmental Claims, which in the case of clauses (i) and (ii) would reasonably
be expected to have a Material Adverse Effect;
(d) upon, but in no event later than 10 days after, any ERISA
Event that would reasonably be expected to have a Material Adverse Effect,
together with (i) a copy of any notice with respect to such ERISA Event that may
be required to be filed with the PBGC and (ii) any notice delivered by the PBGC
to the Company or any member or its Controlled Group with respect to such ERISA
Event;
(e) any public announcement of any change in the Pricing Ratings;
and
(f) of any material change in accounting policies or financial
reporting practices by the Company or any of its Subsidiaries and the specific
effects of any such change on the Company or any of its Subsidiaries unless any
such changes are required to be made by companies generally in response to rules
of the Securities and Exchange Commission, the Financial Accounting Standards
Board (FASB) or any other similar governmental agency or other organization and
the effects of any such change are disclosed by the Company in any reports or
other filings made under the Exchange Act.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, and stating what action (if any is required) the
Company proposes to take with respect thereto.
Section 6.04. Preservation of Corporate Existence, Etc. Each
Credit Party shall, and shall cause its Significant Subsidiaries to, preserve
and maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation and preserve and
maintain in full force and effect all rights,
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privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business the non-preservation of which
would reasonably be expected to have a Material Adverse Effect; provided that
nothing herein shall prevent to the extent not otherwise prohibited by the
provisions of Section 7.02 or 7.03, a consolidation or merger of the Company.
Section 6.05. Maintenance of Property. Each Credit Party shall,
and shall cause each of its Significant Subsidiaries to, maintain and preserve
all its Property which is used or useful in its business in good working order
and condition, ordinary wear and tear excepted, in such Credit Party's
reasonable judgment the non-maintenance or non-preservation of which would
reasonably be expected to have a Material Adverse Effect; provided that nothing
in this Section shall require the making of any repair or replacement of or to
any particular Property that would not be required in the exercise of sound
business judgment.
Section 6.06. Insurance. Each Credit Party shall, and shall cause
each of its Subsidiaries to, maintain with financially sound and reputable
independent insurers, insurance with respect to its Properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons;
including workers' compensation insurance, public liability and Property and
casualty insurance; provided that such Credit Party or any of its Subsidiaries
may self-insure to the extent that it maintains adequate reserves therefor and
self-insurance is customary and prudent in its business judgment.
Section 6.07. Compliance with Laws. Each Credit Party shall, and
shall cause each of its Subsidiaries to, comply, in all material respects with
any Requirement of Law of any Governmental Authority having jurisdiction over it
or its business (including the Federal Fair Labor Standards Act), except such
Requirement of Law the non-compliance with which would not be reasonably
expected to have a Material Adverse Effect.
Section 6.08. Inspection of Property and Books and Records. Each
Credit Party shall, and shall cause each of its Subsidiaries to, maintain proper
books of record and account, in which full, true and correct entries shall be
made of all financial transactions and matters involving the assets and business
of such Credit Party and such Subsidiaries. Each Credit Party shall permit, and
shall cause each of its Subsidiaries to permit, representatives and independent
contractors of the Administrative Agent or any Lender to visit and inspect any
of their respective Properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants (provided that such
Credit Party may, if it chooses, be present at any such discussions) at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon
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reasonable advance notice to such Credit Party; provided that the foregoing
shall be subject to compliance with applicable security regulations of any
Governmental Authority and shall not require the Company to permit inspection of
any Properties or financial or operating records to an extent that would require
such Credit Party or any of its Subsidiaries to reveal any of its trade secrets,
research data or proprietary information which its management in good faith
believes to be irrelevant to this Agreement.
Section 6.09. Environmental Laws. Each Credit Party shall, and
shall cause each of its Subsidiaries to, conduct its operations and keep and
maintain its Properties in compliance with all Environmental Laws, except for
such non-compliance as would not reasonably be expected to have a Material
Adverse Effect.
Section 6.10. Use of Proceeds. The Credit Parties shall use the
proceeds (a) in the case of Dollar Loans, to pay outstanding Indebtedness and
all other amounts owing under the Existing Agreement, and (b) in the case of all
Loans, for working capital, capital expenditures and other general corporate
purposes of the applicable Borrower and its Subsidiaries not in contravention of
any Requirement of Law.
Section 6.11. Regulatory Approvals. Each Credit Party shall, and
shall cause each of its subsidiaries to, maintain all material licenses,
permits, authorizations and regulatory approvals necessary to own and operate
facilities and to comply with all applicable laws and regulations, except for
such non-maintenance or non-compliance as would not be reasonably expected to
have a Material Adverse Effect.
Section 6.12. Transactions with Officers, Directors and
Affiliates.
(a) No Credit Party shall, and each Credit Party shall cause each
of its Subsidiaries not to, engage in transactions with their respective
officers and directors other than on an arms-length basis.
(b) Each Credit Party shall, and shall cause each of its
Subsidiaries to, exercise reasonable business judgment in entering in
transactions with their Affiliates.
ARTICLE VII
NEGATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force,
the Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:
Section 7.01. Liens, Negative Pledges. Make, create, incur,
assume or suffer to exist any Lien of any nature upon or with respect to any of
their respective Properties, whether now owned or hereafter acquired, except:
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(a) Liens securing Indebtedness and other obligations existing on
the Closing Date, and, in the case of Liens securing Indebtedness and other
obligations in excess of $1,000,000 set forth in Schedule 7.01;
(b) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and all such
liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $50,000,000;
(c) Liens securing obligations not exceeding $100,000,000 in the
aggregate on the assets of single purpose Subsidiaries;
(d) Permitted Liens;
(e) Liens in connection with Synthetic Leases permitted under
Section 7.05;
(f) (i) any Lien that replaces, extends or renews any Lien
securing any Indebtedness permitted hereunder, provided such replacement,
extension or renewal Lien shall not encumber any additional Property; (ii) any
Lien on Property previously subject to a Synthetic Lease, provided (A) such Lien
secures Indebtedness used to refinance or replace such Synthetic Lease and (B)
the aggregate principal amount of such Indebtedness does not exceed the fair
value attributable to the Property subject to the Synthetic Lease at the time
such Property is being refinanced or replaced; and
(g) Liens not otherwise permitted by the foregoing clauses of
this Section provided that the aggregate amount of Indebtedness or other
obligations secured by such other Liens permitted by this subsection (g) does
not at any time exceed an amount equal to 7.5% of the Company's consolidated
tangible assets, determined as of the end of the immediately preceding fiscal
quarter.
Section 7.02. Dispositions. Make any Disposition of its Property,
whether now owned or hereafter acquired, except for:
(a) Permitted Dispositions;
(b) any Disposition consisting of a merger or consolidation
permitted pursuant to Section 7.03; and
(c) Dispositions of assets not otherwise permitted hereunder
which are made for fair market value; provided, that assets so disposed in any
fiscal year contributed no more than 5% to the Company's consolidated revenues
in the prior fiscal year; and provided further, that at the time of any such
Disposition, no Event of Default shall exist or shall result from such
Disposition.
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Section 7.03. Mergers. Merge or consolidate with or into any
Person, except:
(a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation, or with any one or
more Subsidiaries of the Company;
(b) any Subsidiary of the Company may sell all or substantially
all of its assets (upon voluntary liquidation or otherwise), to the Company or a
Subsidiary of the Company; and
(c) the Company may merge with another corporation, provided that
the Company shall be the surviving corporation, and that after giving effect to
such merger, no Default or Event of Default shall then have occurred or exist.
Section 7.04. Limitation on Guaranty Obligations. Create, incur,
assume, suffer to exist, or otherwise be liable with respect to, any Guaranty
Obligations, except for:
(a) guaranties of loans to employees for the purchase of capital
stock of the Company not exceeding $15,000,000 in aggregate principal amount
outstanding at any time;
(b) Guaranty Obligations consisting of bid and performance bonds
for the benefit of third parties not exceeding $150,000,000 in aggregate
principal amount at any time;
(c) Ordinary Course Guaranty Obligations; and
(d) other Guaranty Obligations not exceeding 7.5% of the
Company's consolidated tangible assets.
The Guaranty Obligations limited by this Section 7.04 shall not include claims
for refunds or the imposition of charges made by customers of the Company and
its Subsidiaries based on unsatisfactory work by the Company or any of its
Subsidiaries in the Ordinary Course of Business, except that such claims shall
be included, and shall be taken into account, with respect to the other
covenants set forth in this Article VII when recognized as liabilities on the
Company's balance sheet in accordance with GAAP.
Section 7.05. Synthetic Leases. Create, incur, assume, suffer to
exist, or otherwise be liable, directly or indirectly, with respect to, any
Synthetic Leases, except for Synthetic Leases related to tangible Property
having a value (determined at the time of each transaction) not exceeding
$250,000,000 in aggregate amount at any time.
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Section 7.06. Compliance with ERISA. To the extent an event or
condition specified in this Section has a reasonable likelihood of having a
Material Adverse Effect, (a) terminate any Plan subject to Title IV of ERISA,
(b) permit to exist any ERISA Event, (c) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder except in the
Ordinary Course of Business or (d) permit the existence of Unfunded Pension
Liabilities.
Section 7.07. Interest Coverage Ratio. The Company shall maintain
an Interest Coverage Ratio of not less than 3.5 to 1.0 for each period of four
consecutive fiscal quarters, commencing with the four fiscal quarters ended
April 30, 2002.
Section 7.08. Ratio of Consolidated Funded Debt to EBITDA. The
Company shall maintain a ratio of Consolidated Funded Debt to EBITDA of not more
than 2.75 to 1.00 for each period of four consecutive fiscal quarters,
commencing with the four fiscal quarters ended April 30, 2002.
Section 7.09. Accounting Changes. Make any significant change in
accounting treatment or reporting practices, except as required or permitted by
GAAP, or change the Fiscal Year of the Company or of any of its Significant
Subsidiaries.
Section 7.10. Change in Nature of Business. Make any material
change in the nature of the business of the Company and its Subsidiaries, taken
as a whole.
Section 7.11. Hedging Agreements. Enter into any Hedging
Agreement, other than Hedging Agreements entered into to hedge or mitigate risks
to which the Company or any of its Subsidiaries is exposed in the conduct of its
business or management of its assets or liabilities.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
Section 8.01. Events of Default. The existence or occurrence of
any one or more of the following events, whatever the reason therefor and under
any circumstances whatsoever, shall constitute an Event of Default:
(a) Non-Payment. Any Credit Party fails to pay, (i) within one
day after the same shall become due any amount of principal of any Loan, or (ii)
within five days after the same shall become due, any interest on any Loan, fee
or any other amount payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any material representation or
warranty by any Credit Party made or deemed made herein, in any Loan Document,
or which is contained in any certificate, document or financial or other
statement by any Credit Party, any of its Subsidiaries, or their respective
Responsible Officers, furnished at
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any time under this Agreement, or in or under any Loan Document, shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or
(c) Specific Defaults. Any Credit Party fails to perform or
observe any term, covenant or agreement contained in Section 6.04, or the
Company fails to perform or observe any term, covenant or agreement contained in
Section 7.03, 7.07 or 7.08; or
(d) Other Defaults. Any Credit Party fails to perform any other
term, covenant or agreement contained in any Loan Document not specifically
mentioned in this Section 8.01 and, such default shall continue unremedied for a
period of 30 days after notice by the Administrative Agent thereof; or
(e) Cross Default. Any of the Company, its Subsidiaries or any
other Credit Party (i) fail to make any payment in respect of any Indebtedness
(other than non-recourse Indebtedness) owing to any Person (other than the
Obligations hereunder) when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) having an aggregate principal
amount (including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $35,000,000; or (ii) fail to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness having an aggregate principal amount (including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$35,000,000, if the effect of such failure, event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. Any Credit Party or
Significant Subsidiary of the Company, (i) ceases or fails to be solvent or
generally fails to pay, or admit in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commence any Insolvency Proceeding with respect to
itself; or (iv) take any action to effectuate or authorize any of the foregoing;
or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Credit Party or Significant
Subsidiary of the Company, or any writ, judgment, warrant of attachment,
execution or similar process, in each case relating to an Insolvency Proceeding,
is issued or levied against a substantial part of any Credit Party's or any such
Significant Subsidiary's Properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) any Credit Party or any
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Significant Subsidiary of the Company admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) any Credit Party or any Significant Subsidiary of the Company acquiesces
in the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for itself
or a substantial portion of its Property or business; or
(h) ERISA. Any of the following events or conditions occurs or
exists which has a reasonable likelihood of having a Material Adverse Effect:
(i) the Company or an ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under a Multiemployer Plan; (ii) the Company or an
ERISA Affiliate shall fail to satisfy its contribution requirements under
Section 412(c) (11) of the Code, whether or not it has sought a waiver under
Section 412(d) of the Code; (iii) an ERISA Event; (iv) the IRS shall have
determined that a Plan that is intended to be qualified under Section 401(a) of
the Code is not qualified; or (v) the occurrence of any combination of events
listed in clauses (iii) through (iv) that involves a net increase in aggregate
Unfunded Pension Liabilities and other liabilities; or
(i) Monetary Judgments. One or more final (non-interlocutory)
judgments, orders or decrees shall be entered against any of the Company, any of
its Subsidiaries or any other Credit Party, involving in the aggregate a
liability (not fully covered by independent third-party insurance and for which
the relevant insurer has acknowledged liability) as to any single or related
series of transactions, incidents or conditions, of $35,000,000 or more, and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof or such later time as may be provided
for the filing of an appeal; or
(j) Change in Control. (i) Any Person (other than a Plan or
Plans) or two or more Persons (other than a Plan or Plans) acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Company (or
other securities convertible into such securities) representing 20% or more of
the combined voting power of all securities of the Company entitled to vote in
the election of directors, other than securities having such power only by
reason of the happening of a contingency; (ii) individuals who at the beginning
of any two year period constituted the Company's Board of Directors cease for
any reason to constitute a majority of directors then in office; or (iii) any
Foreign Borrower ceases to be a Subsidiary of the Company at any time when
Foreign Currency Loans to such Foreign Borrower are outstanding.
Section 8.02. Remedies Upon Event of Default. Without limiting
any other rights or remedies of the Administrative Agent or the Lenders provided
for
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elsewhere in this Agreement, or the other Loan Documents, or by any Requirement
of Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default other than an Event of Default described in Section 8.01(f) or
8.01(g) in respect of any Credit Party,
(i) the Requisite Lenders may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid principal of
all Loans, all interest accrued and unpaid thereon, all obligations
relating to the LC Exposure at such time and all other amounts payable
under the Loan Documents to be forthwith due and payable, whereupon the
same shall become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by such Credit Party; and
(ii) on the Business Day that the Company receives notice from
the Administrative Agent or the Requisite Lenders (or, if the maturity
of the Loans has been accelerated pursuant to clause (i) above, Lenders
with LC Exposure representing 51% or more of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this clause (ii),
the Company shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date,
which amount shall be applied as provided in Section 8.02(f).
(b) Upon the occurrence of any Event of Default described in
Section 8.01(f) or 8.01(g) in respect of any Credit Party,
(i) the Commitments and all other obligations of the
Administrative Agent or the Lenders and all rights of any Credit Party
under the Loan Documents shall terminate without notice to or demand
upon such Credit Party, which are expressly waived by such Credit Party
and the unpaid principal of all Loans, all interest accrued and unpaid
thereon, all obligations relating to the LC Exposure at such time and
all other amounts payable under the Loan Documents shall be forthwith
due and payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly waived
by any Credit Party; and
(ii) the Company shall forthwith deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure,
which amount shall be immediately due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by any Credit Party, and shall be
applied as provided in Section 8.02(f).
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(c) Upon the occurrence of any Event of Default, the
Administrative Agent shall, at the request of the Requisite Lenders, or may with
the consent of the Requisite Lenders, without notice to (except as expressly
provided for in any Loan Document) or demand upon any Credit Party, which are
expressly waived by any Credit Party (except as to notices expressly provided
for in any Loan Document), proceed to protect, exercise and enforce the rights
and remedies of the Administrative Agent and the Lenders under the Loan
Documents against any Credit Party and such other rights and remedies as are
provided by Requirement of Law or equity.
(d) The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement not existing or hereafter arising.
(e) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders in
their sole discretion, and all payments received by the Administrative Agent and
the Lenders, or any of them, shall be applied first to the costs and expenses
(including reasonable Attorneys Costs incurred by the Administrative Agent and
the Lenders), and thereafter paid pro rata to the Lenders in the same
proportions that the aggregate Obligations owed to each Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders. Regardless of how
each Lender may treat payments for the purpose of its own accounting, for the
purpose of computing any Credit Party's Obligations hereunder, payments shall be
applied first, to the costs and expenses of the Administrative Agent and the
Lenders, as set forth above, second, to the payment of accrued and unpaid
interest due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and third, to the payment
of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents. No application of
payments will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of the Lenders hereunder
or thereunder or under any Requirement of Law or in equity.
(f) Cash collateral deposited with the Administrative Agent upon
the occurrence of an Event of Default pursuant to clause (ii) of Section 8.02(a)
or clause (ii) of Section 8.02(b) shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Company
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over funds so deposited
and shall invest and reinvest such funds in short-term instruments in the manner
and to the extent the Administrative Agent deems consistent with the use of such
funds as collateral for the performance of the Company's obligations hereunder.
Other than any interest earned on the investment or reinvestment
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of such funds in accordance with the preceding sentence, all investment and
reinvestment shall be made at the Company's risk and expense and the cash
collateral deposited shall not bear interest for the account of the company.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Company for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing greater than 51% of the total
LC Exposure), be applied to satisfy other obligations of the Company under this
Agreement. If the Company is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Company within
three Business Days after all Events of Default have been cured or waived.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01. Appointment and Authorization. Subject to Section
9.07, each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative Agent by the
terms thereof or are reasonably incidental, as determined by the Administrative
Agent, thereto. This appointment and authorization is intended solely for the
purpose of facilitating the servicing of the Loans and does not constitute
appointment of the Administrative Agent as trustee for any Lender or as
representative of any Lender for any other purpose and, except as specifically
set forth in the Loan Documents to the contrary, the Administrative Agent shall
take such action and exercise such powers only in an administrative and
ministerial capacity.
Section 9.02. Administrative Agent and Affiliates. JPMorgan Chase
Bank (and each successor Administrative Agent) has the same rights and powers
under the Loan Documents as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders"
includes JPMorgan Chase Bank in its individual capacity. JPMorgan Chase Bank
(and each successor Administrative Agent) and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with any Credit Party, any Subsidiary thereof, or any Affiliate of any
Credit Party or any Subsidiary thereof, as if it were not the Administrative
Agent and without any duty to account therefor to the Lenders. JPMorgan Chase
Bank (and each successor Administrative Agent) need not account to any other
Lender for any monies received by it for reimbursement of its costs and expenses
as Administrative Agent hereunder, or for any monies received by it in any
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other capacity. The Administrative Agent shall not be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent, regardless of
whether a Default or an Event of Default has occurred and is continuing.
Section 9.03. Lenders' Credit Decisions. Each Lender agrees that
it has, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of the Company and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
Section 9.04. Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default has
occurred and is continuing, unless the Administrative Agent (or the Lender that
is then the Administrative Agent) has received notice from any Credit Party
stating the nature of the Default or has received notice from a Lender stating
the nature of the Default and that such Lender considers the Default to have
occurred and to be continuing.
(b) The Administrative Agent has only those duties under the Loan
Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon the instructions
of the Requisite Lenders (or of all the Lenders, to the extent required by
Section 10.01) and those instructions shall be binding upon the Administrative
Agent and all the Lenders, provided that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any Loan Document or
to any applicable Requirement of Law or would result, in the reasonable judgment
of the Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice specified
in subsection (a), the Administrative Agent shall immediately give notice
thereof to the Lenders and shall act or not act upon the instructions of the
Requisite Lenders, or of all
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the Lenders, as required hereunder, provided that the Administrative Agent shall
not be required to act or not act if to do so would be contrary to any Loan
Document or to any applicable Requirement of Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial risk of
liability to the Administrative Agent, and except that if the Requisite Lenders,
or all the Lenders, if required hereunder, fail, for five Business Days after
the receipt of notice from the Administrative Agent, to instruct the
Administrative Agent, then the Administrative Agent, in its sole discretion, may
act or not act as it deems advisable for the protection of the interests of the
Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite Lenders, or all
the Lenders, if required hereunder, notwithstanding any other provision hereof.
Section 9.05. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat any Lender as a Lender until the Administrative
Agent receives notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by the payee, and may treat
each Lender as the owner of that Lender's interest in the Obligations for all
purposes of this Agreement until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by that Lender.
(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for the Credit Parties and/or their Subsidiaries or the
Lenders, and shall not be liable for any action taken or not taken by it in good
faith in accordance with any advice of such legal counsel, accountants or other
professionals or experts.
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by the Company or its Subsidiaries of any of the terms, conditions or
covenants of any of the Loan Documents or to inspect the Property, books or
records of the Company or its Subsidiaries.
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(e) Will not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith.
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed by it to be genuine and signed
or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by any Credit Party or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Lender under any Loan Document, including, without limitation, principal,
interest, Facility Fees, Loans and other amounts; provided that, promptly upon
discovery of such an error in computation, the Administrative Agent, the Lenders
and (to the extent applicable) such Credit Party and/or its Subsidiaries or
Affiliates shall make such adjustments as are necessary to correct such error
and to restore the parties to the position that they would have occupied had the
error not occurred.
Section 9.06. Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share (if the Commitments are then in effect) or in
accordance with its proportion of the aggregate outstanding Loans (if the
Commitments have then been terminated), indemnify and hold the Administrative
Agent and its Affiliates, directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, Attorneys Costs that
may be imposed on, incurred by or asserted against it or them in any way
relating to or arising out of the Loan Documents (other than Loan losses
incurred by reason of the failure of any Credit Party to pay the Loans) or any
action taken or not taken by it as Administrative Agent thereunder, except such
as result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for that Lender's Pro Rata Share of any out-of-pocket cost or
expense incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or attempted
enforcement of the Loan Documents, to the extent that any Credit Party is
required by Section 10.04 to pay that cost or expense but fails to do so upon
demand. Nothing in this Section 9.06 shall entitle the Administrative Agent to
recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from the Company or any of its Subsidiaries. To the
extent that the Administrative Agent is later reimbursed such cost or expense by
any Credit Party or any of its Subsidiaries, it shall return the amounts paid to
it by the Lenders in respect of such cost or expense.
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Section 9.07. Successor Administrative Agent. The Administrative
Agent may, and at the request of the Requisite Lenders shall, resign as
Administrative Agent upon 30 days' notice to the Lenders and the Company. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Company shall appoint from among the Lenders a successor Administrative
Agent for the Lenders, unless an Event of Default has occurred and is
continuing, in which case such successor administrative agent shall be selected
from among the Lenders by the Requisite Lenders. If no successor Administrative
Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor Administrative Agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX, and
Sections 10.04 and 10.16 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as a successor administrative agent is appointed as
provided for above.
Section 9.08. No Obligations of Credit Parties. Nothing contained
in this Article IX shall be deemed to impose upon any Credit Party any
obligation in respect of the due and punctual performance by the Administrative
Agent of its obligations to the Lenders under any provision of this Agreement,
and, except as expressly provided in any Articles of the Agreement other than
this Article IX, no Credit Party shall have liability to the Administrative
Agent or any of the Lenders in respect of any failure by the Administrative
Agent or any Lender to perform any of its obligations to the Administrative
Agent or the Lenders under this Agreement. Without limiting the generality of
the foregoing, where any provision of this Agreement relating to the payment of
any amounts due and owing under the Loan Documents provides that such payments
shall be made by any Credit Party to the Administrative Agent for the account of
the Lenders, such Credit Party's obligations to the Lenders in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.
Section 9.09. Documentation Agent; Syndication Agent. None of the
Lenders identified on the facing page or signature pages of this Agreement as
Documentation Agent or Syndication Agent shall have any right, power,
obligation, liability or responsibility or duty under this Agreement other than
those applicable to all
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Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relations with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking any action hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by any Credit Party therefrom, may in any event be effective
unless in writing signed by the Requisite Lenders (and, in the case of any
amendment, modification or supplement of or to any Loan Document to which such
Credit Party is a party, signed by such Credit Party and, in the case of any
amendment, modification or supplement affecting the rights and duties of the
Administrative Agent, signed by the Administrative Agent), and then only in the
specific instance and for the specific purpose given; and, without the approval
in writing of each Lender affected thereby, no amendment, modification,
supplement, termination, waiver or consent may be effective:
(a) To decrease the principal of, or the amount of principal,
principal prepayments or the rate of interest payable on, any Loan, or to
increase the amount of the Commitment or the Pro Rata Share of such Lender, or
to decrease the amount of any Facility Fee payable to such Lender, or any other
fee or amount payable to such Lender under the Loan Documents or to waive an
Event of Default consisting of the failure of any Credit Party to pay when due
principal, interest or any Facility Fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Loan or any
installment of any Facility Fee, or to extend the term of the Commitments;
(c) To amend the provisions of the definition of "Requisite
Lenders," Article IV or this Article;
(d) To release the Company from its Obligations under the
Guaranty, to release any Foreign Borrower from its obligations under any Foreign
Borrower Joinder Agreement in respect of outstanding Foreign Currency Loans; or
(e) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
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Section 10.02. Notices. Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands, directions and other
communications provided for therein shall be given by Requisite Notice and shall
be effective as follows:
Effective on earlier of
Mode of Delivery actual receipt and:
---------------- -----------------------------------
Courier On scheduled delivery date
Facsimile When transmission complete
Mail Fourth Business Day after deposit
in U.S. mail
Personal delivery When received
Telephone When answered
provided, however, that notice to the Administrative Agent pursuant to Article
II or IX shall not be effective until actually received by the Administrative
Agent. The Administrative Agent and any Lender shall be entitled to rely and act
on any notice purportedly given by or on behalf of any Credit Party even if such
notice (i) was not made in a manner specified herein, (ii) was incomplete, or
(iii) was not preceded or followed by any other notice specified herein or the
terms of such notice as understood by the recipient varied from any subsequent
related notice provided for herein. The applicable Credit Party shall indemnify
the Administrative Agent and any Lender from any loss, cost, expense or
liability as a result of relying on any notice permitted herein.
Section 10.03. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of any Lender or the
Administrative Agent or the Issuing Bank, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, powers, privileges and remedies of the Administrative
Agent, the Issuing Bank and the Lenders provided herein or other Loan Document
are cumulative and not exclusive of any right, power, privilege or remedy
provided by Requirement of Law or equity. The terms and conditions of Article IX
are inserted for the sole benefit of the Administrative Agent, the Issuing Bank
and the Lenders; the same may be waived in whole or in part, with or without
terms or conditions, in respect of any Loan without prejudicing the
Administrative Agent's, the Issuing Bank's or the Lenders' rights to assert them
in whole or in part in respect of any other Loan.
Section 10.04. Costs and Expenses. The Company shall pay, whether
or not the Transactions shall be consummated:
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(a) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), ▇.▇. ▇▇▇▇▇▇
Securities, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and Citicorp USA, Inc. in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and
(b) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement after
a Default or Event of Default, including its rights under this Section, or in
connection with Letters of Credit or Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Letters of Credit or Loans.
Section 10.05. Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which each of
the Credit Parties is a party will be binding upon and inure to the benefit of
each Credit Party, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that (i) no Credit Party may assign
its rights hereunder or thereunder or any interest herein or therein without the
prior written consent of all the Lenders, and (ii) no Lender may assign or
transfer its rights or obligations hereunder except in accordance with this
Section. Any Lender may at any time pledge its Note or any other instrument
evidencing its rights as a Lender under this Agreement to a Federal Reserve
Lender, but no such pledge shall release that Lender from its obligations
hereunder or grant to such Federal Reserve Lender the rights of a Lender
hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more assignees all or any portion of its Pro Rata Share;
provided that so long as no Default or Event of Default exists, (i) such
assignee is an Eligible Assignee, and (ii) if such assignee is not then a
Lender, an Affiliate of the assigning Lender or a CLO administered or managed by
the assigning Lender or an Affiliate of the assigning Lender, shall be approved
by each of the Administrative Agent and the Company (neither of which approvals
shall be unreasonably withheld or delayed; it being understood that it shall not
be deemed unreasonable to withhold such consent if based solely on the desire to
avoid the payment of additional costs or taxes), and (iii) except in the case of
an assignment to an Affiliate of the assigning Lender, to a CLO administered or
managed by the assigning Lender or an Affiliate of the assigning Lender, to
another Lender or of the entire remaining Commitment of the assigning Lender;
the assignment shall not assign a Pro Rata Share which is equivalent to less
than the Minimum Amount therefor. A copy of a Notice of Assignment and
Acceptance shall be delivered to the Administrative Agent
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with respect to any assignment. The effective date of any such assignment shall
be as specified in the Notice of Assignment and Acceptance, but not earlier than
the date which is five Business Days after the date the Administrative Agent has
received the Notice of Assignment and Acceptance. Upon acceptance by the
Administrative Agent of such Notice Assignment and Acceptance, the Eligible
Assignee named therein shall be a Lender for all purposes of this Agreement,
with the Pro Rata Share therein set forth and, to the extent of such Pro Rata
Share, the assigning Lender shall be released from its further obligations under
this Agreement. Each Credit Party agrees that it shall execute and deliver upon
request (against delivery by the assigning Lender to such Credit Party of any
Note) to such assignee Lender, one or more Notes evidencing that assignee
Lender's Pro Rata Share, and to the assigning Lender if requested, one or more
Notes evidencing the remaining balance Pro Rata Share retained by the assigning
Lender.
(c) By executing and delivering a Notice of Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i)
other than the representation and warranty that it is the legal and beneficial
owner of the Pro Rata Share being assigned thereby free and clear of any adverse
claim, the assigning Lender has made no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Credit Party or the performance by any Credit Party of the Obligations;
(iii) it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) it
will, independently and without reliance upon the Administrative Agent or any
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; (v) it appoints and authorizes the Administrative
Agent to take such action and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by this Agreement; and (vi) it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $3,500 from such Eligible
Assignee, the Administrative Agent shall, promptly following the effective date
thereof, provide to the Company and the Lenders a revised Schedule 10.02 giving
effect thereto.
(e) Each Lender may from time to time grant participations to one
or more banks or other financial institutions (including another Lender) in a
portion of its Pro Rata Share; provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to
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the other parties hereto for the performance of such obligations, (iii) the
participating banks or other financial institutions shall not be a Lender
hereunder for any purpose except, if the participation agreement so provides,
for the purposes of Article III but only to the extent that the cost of such
benefits to the Company does not exceed the cost which the Company would have
incurred in respect of such Lender absent the participation, (iv) the Credit
Parties, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation shall not restrict an
increase in the Commitments or in the granting Lender's Pro Rata Share, so long
as the amount of the participation interest is not affected thereby and (vi) the
consent of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents other than those which
(A) extend the Maturity Date as to such participant or any other date upon which
any payment of money is due to such participant, (B) reduce the rate of interest
owing to such participant, any fee or any other monetary amount owing to such
participant or (C) reduce the amount of any installment of principal owing to
such participant. A Lender granting a participation in accordance with this
clause (e) shall give Requisite Notice to the Company on by executing and
delivering a Notice of Participation no later than 5 Business Days after the
effective date of such participation.
Section 10.06. Sharing of Setoffs. Each Lender severally agrees
that if it, through the exercise of any right of setoff, banker's lien or
counterclaim against any Credit Party or otherwise, receives payment of the
Obligations held by it that is ratably more than all Extensions of Credit
(including Competitive Loans) made by any other Lender, through any means, then,
subject to any applicable Requirement of Law: (a) the Lender exercising the
right of setoff, banker's lien or counterclaim or otherwise receiving such
payment shall purchase, and shall be deemed to have simultaneously purchased,
from the other Lenders a participation in the Obligations held by the other
Lenders and shall pay to the other Lenders a purchase price in an amount so that
the share of the Obligations held by each Lender after the exercise of the right
of setoff, banker's lien or counterclaim or receipt of payment shall be in the
same proportion that existed prior to the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Lenders share any payment obtained
in respect of the Obligations ratably in accordance with each Lender's share of
the Obligations immediately prior to, and without taking into account, the
payment; provided that, if all or any portion of a disproportionate payment
obtained as a result of the exercise of the right of setoff, banker's lien,
counterclaim or otherwise is thereafter recovered from the purchasing Lender by
such Credit Party or any Person claiming through or succeeding to the rights of
such Credit Party, the purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the recovery, but
without interest. Each Lender that purchases a participation in the Obligations
pursuant to this Section shall from and after the purchase have the right to
give all notices, requests, demands, directions and other communications under
this
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Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the
Obligations purchased. Each Credit Party expressly consents to the foregoing
arrangements and agree that any Lender holding a participation in an Obligation
so purchased may, to the fullest extent permitted by any applicable Requirement
of Law, exercise any and all rights of setoff, banker's lien or counterclaim
with respect to the participation as fully as if the Lender were the original
owner of the Obligation purchased.
Section 10.07. Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
Section 10.08. Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Agreement or any instrument or agreement
required hereunder.
Section 10.09. No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and legal benefit of the Credit
Parties, the Administrative Agent and the Lenders, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents. Neither the
Administrative Agent nor any Lender shall have any obligation to any Person not
a party to this Agreement or other Loan Documents.
Section 10.10. Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.
Section 10.11. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, COUNTY OF
NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH CREDIT PARTY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENT OF LAW, ANY
OBJECTION,
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INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. EACH CREDIT PARTY WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
Section 10.12. WAIVER OF JURY TRIAL. THE CREDIT PARTIES, THE
LENDERS AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
ADMINISTRATIVE AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE CREDIT PARTIES, THE
LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
Section 10.13. Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and understanding
between the Credit Parties, the Administrative Agent and the Lenders, and
supersedes all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and thereof,
and any prior arrangements made with respect to the payment by the Credit
Parties of (or any indemnification for) any fees, costs or expenses payable to
or incurred (or to be incurred) by or on behalf of the Administrative Agent or
any Lender.
Section 10.14. Interpretation. This Agreement is the result of
negotiations between and has been reviewed by counsel to the Administrative
Agent, the Lenders, the Company and other parties, and is the product of all
parties hereto. Accordingly, this Agreement and the other Loan Documents shall
not be construed against the Administrative Agent or any Lender merely because
of the Administrative
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Agent's or any Lender's involvement in the preparation of such documents and
agreements.
Section 10.15. Nature of Lenders' Obligations. The obligations of
the Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
any Credit Party or any Affiliate of any Credit Party. Each Lender's obligation
to make any Loan pursuant hereto is several and not joint or joint and several.
A default by any Lender will not increase the Pro Rata Share attributable to any
other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in
default, but is not obligated to do so. The Administrative Agent agrees that it
will use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to the Company, to replace such a Lender in default.
Section 10.16. Indemnity; Damage Waiver.
(a) The Company shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any exchange or conversion of currencies in connection with
Section 2.06 or otherwise, (iv) the issuance of any Letter of Credit or (v) the
failure of the Issuing Bank to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any Governmental
Authority, (vi) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by any Credit Party or any of its
Subsidiaries, or any Environmental Liability related in any way to any Credit
Party or any of its Subsidiaries or (vii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee. As between the Company and the Issuing Bank, the
Company assumes all risks of the acts and omissions of, or misuse of a Letter of
Credit by, a beneficiary of such Letter of Credit. In furtherance and not in
limitation of
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the foregoing, no Indemnitee shall be responsible for any of the following: (A)
the form, validity, sufficiency, accuracy, genuineness or legal effects of any
documents submitted by any party in connection with the request and application
for and issuance of any Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason whatsoever; (C) any failure of a
beneficiary of any Letter of Credit to comply with any condition of drawing
thereunder; (D) any errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not in cipher; (E) any error in interpretation; (F) any loss or delay
in the transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (G) any
misapplication by a beneficiary of any Letter of Credit of the proceeds of any
drawing thereunder; or (H) any consequences arising from or related to events or
circumstances beyond the control of the Issuing Bank, including any act or
omission, whether rightful or wrongful, of any Governmental Authority. In
furtherance and not in limitation of the specific provisions herein set forth,
any action taken or omitted by the Issuing Bank under or in connection with any
Letter of Credit or related certificates, if taken or omitted in good faith,
shall not result in or give rise to any liability of any Indemnitee to the
Company.
(b) The Company shall indemnify the Administrative Agent and each
Lender for funding costs or funding losses (excluding loss of margin) if
prepayment or conversion of a IBOR Loan occurs prior to the end of an Interest
Period, if caused or requested by any Credit Party or if any Credit Party fails
to consummate a IBOR Loan because conditions precedent to borrowing or
conversion are not satisfied.
Section 10.17. Nonliability of the Lenders. Each Credit Party
acknowledges and agrees that the relationship between each Credit Party and the
Administrative Agent and the Lenders is, and shall at all times remain, solely
that of borrowers and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be construed to be partners or joint venturers of
any Credit Party or its Affiliates; neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with any Credit Party or its
Affiliates, or to owe any fiduciary duty to any Credit Party or its Affiliates;
neither the Administrative Agent nor the Lenders undertake or assume any
responsibility or duty to any Credit Party or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform such Credit Party or its
Affiliates of any matter in connection with its Property or the operations of
such Credit Party or its Affiliates; each Credit Party and its Affiliates shall
rely entirely upon their own judgment with respect to such matters; and any
review, inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent or the Lenders in connection
with such matters is solely for the protection of the Administrative Agent
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and the Lenders and neither any Credit Party nor any other Person is entitled to
rely thereon.
Section 10.18. Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Agent or any Lender not to require payment of any
interest (including Default Interest), fee, cost or other amount payable under
any Loan Document, or to calculate any amount payable by a particular method, on
any occasion shall in no way limit or be deemed a waiver of the Administrative
Agent's or such Lender's right to require full payment of any interest
(including Default Interest), fee, cost or other amount payable under any Loan
Document, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
Section 10.19. Headings. Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
Section 10.20. Foreign Lenders and Participants. Each Lender, and
each holder of a participation interest herein, that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall deliver to the
Administrative Agent, (a) within 20 days after the Closing Date, or (b) prior to
accepting an assignment or receiving a participation interest herein in respect
of Dollar Loans, two duly signed completed copies of either Form W-8BEN
(relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by any Credit Party
pursuant to this Agreement) or Form W-8ECI (relating to all payments to be made
to such Person by any Credit Party pursuant to this Agreement) of the United
States Internal Revenue Service or such other evidence (including, if reasonably
necessary, Form W-8 or W-9) satisfactory to the Company and the Administrative
Agent that no withholding under the U.S. federal income tax laws is required
with respect to such Person. Thereafter and from time to time, each such Person
shall (a) promptly submit to the Administrative Agent two such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Company and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Person by the Company
pursuant to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office, if
any) to avoid any Requirement of Law that the Company make any deduction or
withholding for taxes from amounts payable to such Person. If such Person fails
to timely deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold
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any tax or other amount from payments made in respect of such Person, such
Person shall indemnify the Administrative Agent therefor, including all
penalties and interest and costs and expenses (including reasonable Attorneys
Fees of the Administrative Agent. The obligation of the Lenders under this
Section shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
Section 10.21. Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from any Credit Party pursuant to
this Agreement in confidence, except for disclosure: (a) to a Lender's
Affiliates; (b) to other Lenders and their Affiliates; (c) to legal counsel and
accountants for any Credit Party or any Lender; (d) to other professional
advisors to any Credit Party or any Lender, provided that the recipient has
accepted such information subject to a confidentiality agreement substantially
similar to this Section; (e) to regulatory officials having jurisdiction over
that Lender; (f) as required by Requirement of Law or legal process or in
connection with any legal proceeding to which that Lender and any Credit Party
is adverse parties; and (g) to another financial institution in connection with
a disposition or proposed disposition to that financial institution of all or
part of that Lender's interests hereunder or a participation interest in its
Loans, provided that the recipient has agreed to treat such information
confidentially on a basis similar to the foregoing. For purposes of the
foregoing, "confidential information" shall mean any information respecting any
Credit Party or its Subsidiaries reasonably considered by such Credit Party to
be confidential, other than (i) information previously filed with any
Governmental Authority and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by any Credit Party to
any Person on a non-confidential basis. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of the
Administrative Agent or the Lenders to any Credit Party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: ______________________________________
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent
By: ______________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as a Lender
By: ______________________________________
Name:
Title:
CITICORP USA, INC.,
as Syndication Agent and as a Lender
By: ______________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK,
as Co-Documentation Agent and as a Lender
By: ______________________________________
Name:
Title:
S-1
WACHOVIA BANK N.A.,
as Co-Documentation Agent and
as a Lender,
By: ______________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
as Co-Documentation Agent and as a Lender
By: ______________________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
as a Lender
By: ______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By: ______________________________________
Name:
Title:
MELLON BANK N.A.,
as a Lender
By: ______________________________________
Name:
Title:
S-2
KEY BANK,
as a Lender
By: ________________________________
Name:
Title:
SOCIETE GENERALE (NEW YORK BRANCH),
as a Lender
By: ________________________________
Name:
Title:
MIZUHO FINANCIAL GROUP,
as a Lender
By: ________________________________
Name:
Title:
CREDIT LYONNAIS (NEW YORK BRANCH),
as a Lender
By: ________________________________
Name:
Title:
THE NORTHERN TRUST COMPANY,
as a Lender
By: ________________________________
Name:
Title:
S-3
U.S. BANK N.A.,
as a Lender
By: ________________________________
Name:
Title:
ALLFIRST BANK,
as a Lender
By: ________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.,
as a Lender
By: ________________________________
Name:
Title:
S-4
Exhibits and Schedules have been omitted.