EXHIBIT 10.2
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FORM OF
$600,000,000
CREDIT AGREEMENT
AMONG
BOSTON SCIENTIFIC CORPORATION,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.,
ABN AMRO BANK, N.V.,
DEUTSCHE BANK AG NEW YORK BRANCH
FLEET NATIONAL BANK
AS SYNDICATION AGENTS,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
AND
BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF AUGUST 15, 2001
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TABLE OF CONTENTS
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Section 1. DEFINITIONS............................................................................................6
1.1 Defined Terms...................................................................................6
1.2 Other Definitional Provisions..................................................................27
Section 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................28
2.1 Revolving Credit Commitments...................................................................28
2.2 Procedure for Revolving Credit Borrowing.......................................................28
2.3 Swingline Commitment...........................................................................29
2.4 Procedure for Swingline Borrowing; Refunding of Swingline Loans................................29
2.5 Facility Fee; Utilization Fee..................................................................30
2.6 Termination or Reduction of Commitments........................................................31
2.7 Repayment of Revolving Credit Loans............................................................31
2.8 CAF Advances...................................................................................31
2.9 Procedure for CAF Advance Borrowing............................................................32
2.10 Repayment of CAF Advances......................................................................35
2.11 Certain Restrictions with Respect to CAF Advances..............................................35
2.12 Multicurrency Commitments......................................................................35
2.13 Repayment of Multicurrency Loans...............................................................36
2.14 Procedure for Multicurrency Borrowing..........................................................36
2.15 Termination or Reduction of Multicurrency Commitments..........................................36
2.16 Borrowings of Revolving Credit Loans and Refunding of Loans....................................37
Section 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS............................................................38
3.1 Optional and Mandatory Prepayments.............................................................38
3.2 Conversion and Continuation Options............................................................40
3.3 Minimum Amounts and Maximum Number of Tranches.................................................40
3.4 Interest Rates and Payment Dates...............................................................41
3.5 Computation of Interest and Fees...............................................................41
3.6 Inability to Determine Interest Rate...........................................................42
3.7 Pro Rata Treatment and Payments................................................................43
3.8 Illegality.....................................................................................44
3.9 Requirements of Law............................................................................45
3.10 Taxes..........................................................................................46
3.11 Indemnity......................................................................................47
3.12 Change of Lending Office; Removal of Lender....................................................48
3.13 Evidence of Debt...............................................................................48
Section 4. LOCAL CURRENCY FACILITIES.............................................................................49
4.1 Terms of Local Currency Facilities.............................................................49
4.2 Reporting of Local Currency Outstandings.......................................................51
Section 5. LETTERS OF CREDIT.....................................................................................51
5.1 L/C Commitment.................................................................................51
5.2 Procedure for Issuance of Letter of Credit.....................................................52
5.3 Fees and Other Charges.........................................................................52
5.4 L/C Participations.............................................................................52
5.5 Reimbursement Obligation of the Borrower.......................................................53
5.6 Obligations Absolute...........................................................................54
5.7 Letter of Credit Payments......................................................................54
5.8 Applications...................................................................................54
Section 6. REPRESENTATIONS AND WARRANTIES........................................................................55
6.1 Financial Condition............................................................................55
6.2 No Change......................................................................................55
6.3 Corporate Existence; Compliance with Law.......................................................56
6.4 Corporate Power; Authorization; Enforceable Obligations........................................56
6.5 No Legal Bar...................................................................................56
6.6 No Material Litigation.........................................................................56
6.7 No Default.....................................................................................57
6.8 Intellectual Property..........................................................................57
6.9 Taxes..........................................................................................57
6.10 Federal Regulations............................................................................57
6.11 ERISA..........................................................................................58
6.12 Investment Company Act; Other Regulations......................................................58
6.13 Purpose of Loans...............................................................................58
6.14 Environmental Matters..........................................................................58
6.15 Disclosure.....................................................................................59
Section 7. CONDITIONS PRECEDENT..................................................................................60
7.1 Conditions to Initial Loans and Letters of Credit..............................................60
7.2 Conditions to Each Loan and Letter of Credit...................................................61
Section 8. AFFIRMATIVE COVENANTS.................................................................................61
8.1 Financial Statements...........................................................................61
8.2 Certificates; Other Information................................................................62
8.3 Payment of Obligations.........................................................................62
8.4 Conduct of Business and Maintenance of Existence...............................................62
8.5 Maintenance of Property; Insurance.............................................................63
8.6 Inspection of Property; Books and Records; Discussions.........................................63
8.7 Notices........................................................................................63
Section 9. NEGATIVE COVENANTS....................................................................................64
9.1 Financial Covenants............................................................................64
9.2 Limitation on Liens............................................................................64
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9.3 Limitation on Indebtedness.....................................................................65
9.4 Limitation on Fundamental Changes..............................................................65
Section 10. EVENTS OF DEFAULT....................................................................................66
Section 11. THE AGENTS...........................................................................................69
11.1 Appointment....................................................................................69
11.2 Delegation of Duties...........................................................................69
11.3 Exculpatory Provisions.........................................................................69
11.4 Reliance by Administrative Agent...............................................................70
11.5 Notice of Default..............................................................................70
11.6 Non-Reliance on Administrative Agent and Other Lenders.........................................70
11.7 Indemnification................................................................................71
11.8 Administrative Agent in Its Individual Capacity................................................71
11.9 Successor Administrative Agent.................................................................72
11.10 The Arrangers, the Bookrunners and the Syndication Agents......................................72
Section 12. GUARANTEE............................................................................................72
12.1 Guarantee......................................................................................72
12.2 No Subrogation.................................................................................73
12.3 Amendments, etc. with respect to the Obligations; Waiver of Rights.............................73
12.4 Guarantee Absolute and Unconditional...........................................................74
12.5 Reinstatement..................................................................................75
12.6 Payments.......................................................................................75
12.7 "Lenders"......................................................................................75
Section 13. MISCELLANEOUS........................................................................................75
13.1 Amendments and Waivers.........................................................................75
13.2 Notices........................................................................................76
13.3 No Waiver; Cumulative Remedies.................................................................77
13.4 Survival of Representations and Warranties.....................................................77
13.5 Payment of Expenses and Taxes..................................................................78
13.6 Successors and Assigns; Participations and Assignments.........................................78
13.7 Adjustments; Set-off...........................................................................81
13.8 Counterparts...................................................................................81
13.9 Severability...................................................................................82
13.10 Integration....................................................................................82
13.11 GOVERNING LAW..................................................................................82
13.12 Submission To Jurisdiction; Waivers............................................................82
13.13 Acknowledgements...............................................................................83
13.14 Confidentiality................................................................................83
13.15 Loan Conversion/Participations.................................................................83
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13.16 Judgment.......................................................................................84
13.17 WAIVERS OF JURY TRIAL..........................................................................85
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SCHEDULES
Schedule I........ Names, Addresses and Commitments of Lenders
Schedule II....... Information Concerning Local Currency Loans
Schedule 8.2...... Existing Liens
EXHIBITS
Exhibit A......... Form of Revolving Credit Note
Exhibit B......... Form of CAF Advance Note
Exhibit C......... Form of CAF Advance Request
Exhibit D......... Form of CAF Advance Offer
Exhibit E......... Form of CAF Advance Confirmation
Exhibit F......... Form of Closing Certificate
Exhibit G......... Form of Opinion of Counsel to Borrower
Exhibit H......... Form of Assignment and Acceptance
Exhibit I......... Form of Local Currency Facility Addendum
Exhibit J......... Form of Exemption Certificate
CREDIT AGREEMENT, dated as of August 15, 2001, among (i)
BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the "Borrower"), (ii) the
several banks and other financial institutions or entities from time to time
parties hereto (the "Lenders"), (iii) BANK OF AMERICA N.A., ABN AMRO BANK N.V.,
DEUTSCHE BANK AG NEW YORK BRANCH and FLEET NATIONAL BANK, as Syndication Agents
(each, in such capacity, a "Syndication Agent", and collectively, the
"Syndication Agents"), (iv) ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. AND BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arrangers (each, in such capacity, an "Arranger",
and collectively, the "Arrangers") and as Joint Bookrunners (each in such
capacity, a "Bookrunner", and collectively, the "Bookrunners"), and (v) THE
CHASE MANHATTAN BANK, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower, certain of the Lenders, the Arranger,
the Administrative Agent and others are parties to the Credit Agreement, dated
as of September 4, 1998 (as amended, supplemented or other wise modified prior
to the date hereof, the "364-Day Facility");
WHEREAS, the Borrower intends to terminate the 364-Day
Facility and has requested that the Lenders make available a five-year credit
facility as described herein; and
WHEREAS, the Lenders have agreed to make such credit facility
available upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business
Day) by the Board of Governors of the Federal Reserve System (the
"Board") through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the
average of the secondary market quotations for three-month certificates
of deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if such
day shall not be a Business Day, on the next preceding Business Day) by
the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it;
and "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it. Any
change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Revolving Credit Loans and Swingline Loans
bearing interest based upon the ABR.
"Adjusted Aggregate Committed Outstandings": with respect to
each Lender, the Aggregate Committed Outstandings of such Lender, plus
the amount of any participating interests purchased by such Lender
pursuant to subsection 13.15, minus the amount of any participating
interests sold by such Lender pursuant to subsection 13.15.
"Administrative Agent": Chase, as the agent for the Lenders
under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Administrative
Agent, the Syndication Agents, the Arrangers and the Bookrunners.
"Aggregate Available Multicurrency Commitments": as at any
date of determination with respect to all Multicurrency Lenders, an
amount in Dollars equal to the sum of the Available Multicurrency
Commitments of all Multicurrency Lenders on such date.
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"Aggregate Available Revolving Credit Commitments": as at any
date of determination with respect to all Lenders, an amount in Dollars
equal to the sum of the Available Revolving Credit Commitments of all
Lenders on such date.
"Aggregate Committed Outstandings": as at any date of
determination with respect to any Lender, an amount in Dollars equal to
the sum of (a) the Aggregate Revolving Credit Outstandings of such
Lender on such date, (b) the Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Lender on such date, and (c) the
Dollar Equivalent of the Aggregate Local Currency Outstandings of such
Lender on such date.
"Aggregate Local Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Local Currencies equal to the aggregate unpaid principal amount of such
Lender's Local Currency Loans.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, an amount in Dollars equal to
the sum of (a) the aggregate unpaid principal amount of such Lender's
Revolving Credit Loans on such date plus (b) such Lender's Revolving
Credit Commitment Percentage of (i) the aggregate outstanding principal
of Swingline Loans and (ii) the L/C Obligations.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount in Dollars equal to
the sum of (a) the Aggregate Revolving Credit Outstandings of such
Lender on such date, (b) the Dollar Equivalent of the aggregate unpaid
principal amount of such Lender's CAF Advances on such date, (c) the
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Lender on such date and (d) the Dollar Equivalent of the Aggregate
Local Currency Outstandings of such Lender on such date.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 13.16(b).
"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
Eurodollar Loans
Rating /Multicurrency Loans ABR Loans
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Rating I .275% 0%
Rating II .425% 0%
Rating III .525% 0%
Rating IV .550% 0%
Rating V .775% 0%
Rating VI 1.000% 0%
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"Assignee": as defined in subsection 13.6(c).
"Available Foreign Currencies": euro, Japanese Yen, Australian
Dollar, Canadian Dollar, Pound Sterling, Singapore Dollar, Swiss Franc
and any other available and freely-convertible non-Dollar currency
selected by the Borrower and approved by the Administrative Agent and
the Multicurrency Lenders.
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans required
to be made on such date pursuant to subsection 2.16), an amount in
Dollars equal to the lesser of (a) the excess, if any, of (i) the
amount of such Multicurrency Lender's Multicurrency Commitment in
effect on such date over (ii) the Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Multicurrency Lender on such date
and (b) the excess, if any, of (i) the amount of such Lender's
Revolving Credit Commitment in effect on such date over (ii) the
Aggregate Committed Outstandings of such Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the
making and payment of any Revolving Credit Loans required to be made on
such date pursuant to subsection 2.16), an amount in Dollars equal to
the excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Committed
Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Bookrunner": as defined in the preamble hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2, 2.9 or 2.14 as a date on which the Borrower
requests the Lenders to make Loans hereunder or, with respect to Local
Currency Loans, the date on which a Foreign Subsidiary Borrower
requests Local Currency Lenders to make Local Currency Loans to such
Foreign Subsidiary Borrower pursuant to the Local Currency Facility to
which such Foreign Subsidiary Borrower and Local Currency Lenders are
parties.
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"Business": as defined in subsection 6.14.
"Business Day": a 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 such term is used for the
purpose of determining the date on which the Eurocurrency Base Rate is
determined under this Agreement for any Loan denominated in euro for
any Interest Period therefor and for purposes of determining the first
and last day of any such Interest Period, references in this Agreement
to Business Days shall be deemed to be references to Target Operating
Days.
"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.8.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days
prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.9(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP and, for the purposes of this Agreement, the
amount of such obligations at any
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time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. ss. 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution
in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date, on or before August 15, 2001 on
which conditions precedent set forth in subsection 7.1 shall be
satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
"Commitments": the collective reference to the Revolving
Credit Commitments, Multicurrency Commitments, Swingline Commitments
and L/C Commitments.
"Committed Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate
Committed Outstandings of all Lenders.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Conduit Lender": any special purpose corporation organized
and administered by any Lender for the purpose of making Loans
otherwise required to be made by such Lender and designated by such
Lender in a written instrument; provided, that the
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designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a)
be entitled to receive any greater amount pursuant to Section 3.9,
3.10, 3.11 or 13.5 than the designating Lender would have been entitled
to receive in respect of the extensions of credit made by such Conduit
Lender or (b) be deemed to have any Commitment.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such
period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) Consolidated Interest
Expense of such Person and its Subsidiaries, amortization or writeoff
of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness, (c) depreciation
expense, (d) amortization of intangibles (including, but not limited
to, goodwill) and organization costs and (e) any extraordinary, unusual
or non-recurring non-cash expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business and including special
charges and purchased research and development charges in connection
with acquisitions), and minus, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (a)
interest income (except to the extent deducted in determining
Consolidated Interest Expense) and (b) any extraordinary, unusual or
non-recurring non-cash income or gains (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets
outside of the ordinary course of business).
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any period,
total interest expense of such Person and its Subsidiaries for such
period with respect to all outstanding Indebtedness of such Person and
its Subsidiaries determined in accordance with GAAP (including, all net
costs that are allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters of the Borrower, the ratio
of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
of the Borrower and its Subsidiaries for such period.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
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"Consolidated Tangible Assets": at any date, Consolidated
Total Assets minus (without duplication) the net book value of all
assets which would be treated as intangible assets, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Assets": at any date, the net book value
of all assets of the Borrower and its Subsidiaries as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under subsection 10(e) has occurred or (b) the Commitments
shall have been terminated and/or the Loans shall have been declared
immediately due and payable pursuant to Section 10.
"Conversion Sharing Percentage": on any date with respect to
any Lender and any Loans of such Lender outstanding in any currency
other than Dollars, the percentage of such Loans such that, after
giving effect to the conversion of such Loans to Dollars and the
purchase and sale by such Lender of participating interests as
contemplated by subsection 13.15, the Committed Outstandings Percentage
of such Lender will equal such Lender's Revolving Credit Commitment
Percentage on such date (calculated immediately prior to giving effect
to any termination or expiration of the Commitments on the Conversion
Date).
"Converted Loans: as defined in subsection 13.15(a).
"CP Rating": the respective ratings of each of the Rating
Agencies applicable to the Borrower's commercial paper as announced by
the Rating Agencies from time to time.
"Default": any of the events specified in Section 10, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollar Equivalent": with respect to an amount denominated in
any currency other than Dollars, the equivalent in Dollars of such
amount determined at the Exchange Rate on the date of determination of
such equivalent. In making any determination of the Dollar Equivalent
for purposes of calculating the amount of Loans to be borrowed from the
respective Lenders on any Borrowing Date, the Administrative Agent
shall use the relevant Exchange Rate in effect on the date on which the
interest rate for such Loans is determined pursuant to the provisions
of this Agreement and the other Loan Documents.
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"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes,
ordinances, codes, decrees, or other enforceable requirements or orders
of any Governmental Authority or other Requirements of Law regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"euro": the single currency of participating member states of
the European Union.
"Eurocurrency Base Rate": (a) with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, or a
Multicurrency Loan or CAF Advance denominated in any currency other
than Pounds Sterling, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in the
applicable currency with a term comparable to such Interest Period that
appears on the applicable Telerate Page at approximately 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period; provided, however, that if at any time for any reason such
offered rate for any such currency does not appear on a Telerate Page,
"Eurocurrency Base Rate" shall mean, with respect to each day during
each Interest Period pertaining to a Loan denominated in such currency,
the rate per annum equal to the average (rounded upward to the nearest
1/16th of 1%) of the respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate at which such
Reference Lender is offered deposits in such currency at or about 11:00
A.M., London time, two Business Days prior to the beginning of such
Interest Period in the London interbank market for delivery on the
first day of such Interest Period for the number of days comprised
therein; and (b) with respect to each day during each Interest Period
pertaining to a Multicurrency Loan or CAF Advance denominated in Pounds
Sterling, the rate per annum equal to the average (rounded upward to
the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at
which such Reference Lender is offered deposits in Pounds Sterling at
or about 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period in the Paris interbank market for
delivery on the first day of such Interest Period for the number of
days comprised therein.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to
a Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve
14
requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurocurrency Rate for
Dollars.
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which the sum of the
Aggregate Total Outstandings of all Lenders, plus the Aggregate Total
Outstandings of all Lenders under (and as defined in) the Existing
Credit Agreement, exceeds, 33.33% of the aggregate amount of the
Revolving Credit Commitments hereunder and the Revolving Credit
Commitments under (and as defined in) the Existing Credit Agreement
(or, in each case, with respect to any day after termination of such
Revolving Credit Commitments, 33.33% of the aggregate amount of such
Revolving Credit Commitments in effect on the date immediately prior to
the date on which such Revolving Credit Commitments terminated).
"Exchange Rate": with respect to any non-Dollar currency on
any date, the rate at which such currency may be exchanged into
Dollars, as set forth on such date on the relevant Reuters currency
page at or about 11:00 A.M., London time, on such date. In the event
that such rate does not appear on any Reuters currency page, the
"Exchange Rate" with respect to such non-Dollar currency shall be
determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative
Agent and the Borrower or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate
of exchange in the interbank market where its foreign currency exchange
operations in respect of such non-Dollar currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the
purchase of Dollars with such non-Dollar currency, for delivery two
Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Existing Credit Agreement": the Second Amended and Restated
Credit Agreement dated as of September 4, 1998, as amended, among the
Borrower, the lenders parties thereto, The Chase Manhattan Bank, as
administrative agent, and others, providing for a $1,000,000,000
revolving credit and competitive advance facility, as the same may from
time to time be amended, amended and restated, supplemented or
otherwise modified.
15
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
Facility
Rating Fee Rate
------ --------
Rating I .100%
Rating II .125%
Rating III .150%
Rating IV .175%
Rating V .225%
Rating VI .350%
"Fee Commencement Date": the Closing Date.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurocurrency Rate plus (or minus)
a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the Borrower
organized under the laws of a jurisdiction outside the United States
that the Borrower designates as a "Foreign Subsidiary Borrower" in a
Local Currency Facility Addendum.
"Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any
Loans made on such date pursuant to subsection 2.16), with respect to
any Lender, that percentage which the Available Revolving Credit
Commitment of such Lender then constitutes of the Aggregate Available
Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 6.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation,
16
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other unrelated third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Hedge Agreements": all interest rate or currency swaps, caps
or collar agreements, foreign exchange agreements, commodity contracts
or similar arrangements entered into by the Borrower or its
Subsidiaries providing for protection against fluctuations in interest
rates, currency exchange rates, commodity prices or the exchange of
nominal interest obligations, either generally or under specific
contingencies.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of such Person's business and payable in accordance
with customary practices and earn-outs and other similar obligations in
respect of acquisition and other similar agreements), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under
or in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (g) the liquidation value of all redeemable
preferred Capital Stock of such Person, (h) all indebtedness of such
Person, determined in accordance with GAAP, arising out of a
Receivables Transaction, (i) all Guarantee Obligations of such Person
in respect of obligations of the
17
kind referred to in clauses (a) through (h) above, (j) all obligations
of the kind referred to in clauses (a) through (i) above secured by (or
for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation, and (k) for the purposes of Section 10(d) only, all
obligations of such Person in respect of Hedge Agreements. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of
such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly
provide that such Person is not liable therefor.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan or Multicurrency Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any
Eurodollar Loan or Multicurrency Loan having an Interest Period longer
than three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day
of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan or
Multicurrency Loan:
(i) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such Eurodollar Loan or Multicurrency Loan and
ending one, two, three, six or nine months (or, if available
to all Lenders, twelve months) thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable
to such Eurodollar Loan or Multicurrency Loan and ending one,
two, three, six or nine months (or, if available to all
Lenders, twelve months) thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise
end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest
18
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(2) any Interest Period in respect of any
Loan made by any Lender that would otherwise extend beyond the
Termination Date applicable to such Lender shall end on such
Termination Date; and
(3) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period
beginning on the Borrowing Date with respect thereto and ending on the
CAF Advance Maturity Date with respect thereto.
"Issuing Lender": Chase, in its capacity as issuer of any
Letter of Credit.
"Judgment Currency": as defined in subsection 13.16(b).
"L/C Commitment": $400,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit that have not then been reimbursed pursuant to
subsection 5.5.
"L/C Participants": the collective reference to all the
Lenders other than the Issuing Lender.
"Lender Affiliate": (a) any Affiliate of any Lender, (b) any
Person that is administered or managed by any Lender and that is
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business and (c) with respect to any Lender which is a
fund that invests in commercial loans and similar extensions of credit,
any other fund that invests in commercial loans and similar extensions
of credit and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such Lender or investment advisor.
"Lenders": as defined in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the
Lenders shall be deemed to include any Conduit Lender.
"Letters of Credit": as defined in subsection 5.1(a).
19
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurocurrency Rate for the currency of such CAF
Advance plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan, CAF Advance, Multicurrency
Loan, Swingline Loan or Local Currency Loan, as the case may be.
"Loan Documents": this Agreement, any Notes, the Applications
and any document or instrument evidencing or governing any Local
Currency Facility.
"Loans to be Converted": as defined in subsection 13.15(a).
"Local Currency": any available and freely convertible
non-Dollar currency selected by a Foreign Subsidiary Borrower and
approved by the Administrative Agent.
"Local Currency Facility": any Qualified Credit Facility that
the Borrower designates as a "Local Currency Facility" pursuant to a
Local Currency Facility Addendum.
"Local Currency Facility Addendum": a Local Currency Facility
Addendum received by the Administrative Agent, substantially in the
form of Exhibit I, and conforming to the requirements of Section 4.
"Local Currency Facility Agent": with respect to each Local
Currency Facility, the Local Currency Lender acting as agent for the
Local Currency Lenders parties thereto (and, in the case of any Local
Currency Facility to which only one Lender is a party, such Lender).
"Local Currency Facility Maximum Borrowing Amount": as defined
in subsection 4.1(b).
"Local Currency Lender": any Lender (or, if applicable, any
Affiliate, branch or agency thereof) party to a Local Currency
Facility.
"Local Currency Lender Maximum Borrowing Amount": as defined
in subsection 4.1(b).
"Local Currency Loan": any loan made pursuant to a Local
Currency Facility.
20
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders, the Revolving Credit
Commitment Percentages of which aggregate more than 50%; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders; provided that for purposes
of this definition, the Aggregate Total Outstandings of each Lender
shall be adjusted upward or downward so as to give effect to any
participations or assignments effected pursuant to subsection 13.15.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders the Multicurrency Commitment Percentages of which aggregate
more than 50%.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement or any of the other
Loan Documents or the rights or remedies of the Administrative Agent or
the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Multicurrency Commitment": as to any Multicurrency Lender at
any time, its obligation to make Multicurrency Loans to the Borrower in
an aggregate amount in Available Foreign Currencies the Dollar
Equivalent of which does not exceed at any time outstanding the amount
set forth opposite such Multicurrency Lender's name in Schedule I under
the heading "Multicurrency Commitment", as such amount may be reduced
from time to time as provided in subsection 2.15 and the other
applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment at such time constitutes of the aggregate
Multicurrency Commitments of all Multicurrency Lenders at such time
(or, if the Multicurrency Commitments have terminated or expired, the
percentage which (a) the Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Multicurrency Lender at such time
constitutes of (b) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of all Multicurrency Lenders at such time).
21
"Multicurrency Lender": each Lender having an amount greater
than zero set forth opposite such Lender's name in Schedule I under the
heading "Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 2.12.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Non-Multicurrency Lender": each Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to any Revolving Credit
Notes and any CAF Advance Notes.
"Notice of Local Currency Outstandings": with respect to each
Local Currency Facility Agreement, a notice from the relevant Local
Currency Facility Agent containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Local
Currency Outstandings in Schedule II.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower containing the
information in respect of such Loan, delivered to the Person, in the
manner and by the time, specified for a Notice of Multicurrency Loan
Borrowing in respect of the currency of such Loan in Schedule II.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower containing the
information in respect of such Loan, delivered to the Person, in the
manner and by the time, specified for a Notice of Multicurrency Loan
Continuation in respect of the currency of such Loan in Schedule II.
"Obligations": collectively, the unpaid principal of and
interest on the Loans and all other obligations and liabilities of each
Foreign Subsidiary Borrower under this Agreement and any Local Currency
Facility and other Loan Documents to which it is a party (including,
without limitation, interest accruing at the then applicable rate
provided in this Agreement or any other applicable Loan Document after
the maturity of the Loans and interest accruing at the then applicable
rate provided in this Agreement or any other applicable Loan Document
after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to such
Foreign Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, the Notes, the other Loan Documents,
Hedge Agreements entered into with Lenders or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or
22
to the Lenders that are required to be paid by any Foreign Subsidiary
Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Participant": as defined in subsection 13.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 6.14.
"Qualified Credit Facility": a credit facility (a) providing
for one or more Local Currency Lenders to make unsecured loans
denominated in a Local Currency to a Foreign Subsidiary Borrower, (b)
providing for such loans to bear interest at a rate or rates determined
by the Borrower and such Local Currency Lender or Local Currency
Lenders and (c) otherwise conforming to the requirements of Section 4.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and ▇▇▇▇▇'▇.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV, Rating V and Rating VI.
"Rating I, Rating II, Rating III, Rating IV, Rating V and
Rating VI": the respective Ratings and CP Ratings set forth below:
Rating
Category S&P ▇▇▇▇▇'▇
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
23
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB and CP equal to Baa2 and CP
---- ---
Rating A2 or higher Rating P2 or higher
Rating IV lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB and equal to Baa2 and
--- ---
Rating III not applicable Rating III not
applicable
Rating V lower than BBB and lower than Baa2 and
greater than or equal to greater than or equal
BBB- to Baa3
Rating VI lower than or equal lower than or equal
to BB+ to Ba1
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, and the lower of such Ratings
(i.e., the Rating Category designated by a numerically higher Roman
numeral) is one Rating Category lower than the higher of such Ratings,
then the Rating Category of the higher of such Ratings shall be
applicable for such day, (ii) if on any day the Ratings of the Rating
Agencies do not fall in the same Rating Category, and the lower of such
Ratings is more than one Rating Category lower than the higher of such
Ratings, then the Rating Category next higher from that of the lower of
such Ratings shall be applicable for such day, (iii) if on any day the
Rating of only one of the Rating Agencies is available, then the Rating
Category of such Rating shall be applicable for such day and (iv) if on
any day a Rating is available from neither of the Rating Agencies, then
Rating VI shall be applicable for such day. Any change in the
applicable Rating Category resulting from a change in the Rating of a
Rating Agency shall become effective on the date such change is
publicly announced by such Rating Agency.
"Receivables": any accounts receivable of any Person,
including, without limitation, any thereof constituting or evidenced by
chattel paper, instruments or general intangibles, and all proceeds
thereof and rights (contractual and other) and collateral related
thereto.
"Receivables Subsidiary": any special purpose,
bankruptcy-remote Subsidiary of the Borrower that purchases, on a
revolving basis, Receivables generated by the Borrower or any of its
Subsidiaries.
"Receivables Transaction": any transactions or series of
related transactions providing for the financing of Receivables of the
Borrower or any of its Subsidiaries.
24
"Receivables Transaction Prepayment Amount": with respect to
the initial transfer of Receivables pursuant to any Receivables
Transaction, an amount equal to 100% of the gross proceeds in cash of
such Receivables Transaction, net of (i) reasonable attorneys' fees,
accountants' fees, brokerage, consultant and other customary fees,
underwriting commissions and other reasonable fees and expenses
actually incurred in connection with such Receivables Transaction, (ii)
taxes paid or reasonably estimated to be payable as a result thereof
and (iii) in the case of any Receivables Transaction, any escrowed or
pledged cash proceeds which effectively secure, or are required to be
maintained as reserves by the applicable entity for, the Indebtedness
of the Borrower and its Subsidiaries in respect of, or the obligations
of the Borrower and its Subsidiaries under, such Receivables
Transaction.
"Reference Lenders": Chase, Bank of America, N.A., ABN Amro
Bank N.V., Deutsche Bank AG New York Branch and Fleet National Bank.
"Refunded Swingline Loans": as defined in subsection 2.4.
"Refunding Date": as defined in subsection 2.4.
"Register": as defined in subsection 13.6(d).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Bank pursuant to subsection 5.5(a) for amounts
drawn under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC ▇▇▇.▇▇. 4043.
"Requested Local Currency Loans": as defined in subsection
2.16(b).
"Requested Multicurrency Loans": as defined in subsection
2.16(a).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite
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such Lender's name on Schedule I under the heading "Revolving Credit
Commitment," as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment at such time constitutes of the Aggregate Revolving Credit
Commitments at such time (or, if the Revolving Credit Commitments have
terminated or expired, the percentage which (a) the Aggregate Revolving
Credit Outstandings of such Lender at such time then constitutes of (b)
the Aggregate Revolving Credit Outstandings of all Lenders at such
time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"Revolving Lender": each Lender that has a Revolving Credit
Commitment hereunder or that holds Revolving Credit Loans.
"S&P": Standard & Poor's Ratings Services.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Swingline Commitment": the obligation of the Swingline Lender
to make Swingline Loans pursuant to subsection 2.3 in an aggregate
principal amount at any one time outstanding not to exceed $50,000,000.
"Swingline Lender": Chase, in its capacity as the lender of
Swingline Loans.
"Swingline Loans": as defined in subsection 2.3.
"Swingline Participation Amount": as defined in subsection
2.4.
"Syndication Agents": as defined in the preamble hereto.
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"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined by
the Administrative Agent).
"Termination Date": August 15, 2006.
"364-Day Facility": as defined in the recitals hereto.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day); Tranches may be identified as "Eurodollar Tranches" or
"Multicurrency Tranches".
"Transferee": as defined in subsection 13.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1983 Revision), International Chamber of Commerce
Publication No. 400, as the same may be amended from time to time.
"Utilization Fee Rate": .125% per annum for Rating Categories
I, II, III and IV; .250% for Rating Category V and .375% for Rating
Category VI.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
Section 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans")
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in Dollars to the Borrower from time to time during the Commitment Period so
long as after giving effect thereto (i) the Available Revolving Credit
Commitment of each Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsections 2.4, 2.16
and 5.5) shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000
or a whole multiple of $1,000,000 in excess thereof (or, if the Aggregate
Available Revolving Credit Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Prior to 11:00 A.M., New York City time, on the Borrowing Date requested by the
Borrower, each Lender will make an amount equal to its Funding Commitment
Percentage of the principal amount of the Revolving Credit Loans requested to be
made on such Borrowing Date available to the Administrative Agent for the
account of the Borrower at the New York office of the Administrative Agent
specified in subsection 13.2 in funds immediately available to the
Administrative Agent. Except as otherwise provided in subsection 2.16, such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3 Swingline Commitment. (a) Subject to the terms and
conditions hereof, the Swingline Lender agrees to make a portion of the credit
otherwise available to the Borrower under the Revolving Credit Commitments from
time to time during the Commitment Period by making swing line loans ("Swingline
Loans") to the Borrower; provided that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Credit Loans, may exceed the Swingline Commitment then in effect) and
(ii) the Borrower shall not request, and the
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Swingline Lender shall not make, any Swingline Loan if, after giving effect to
the making of such Swingline Loan, the aggregate amount of the Available
Revolving Credit Commitments would be less than zero. During the Commitment
Period, the Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swingline
Loans shall be ABR Loans only.
(b) The Borrower shall repay all outstanding Swingline Loans
on the Termination Date.
2.4 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment
Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not later
than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice
in respect of Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on one Business
Day's notice given by the Swingline Lender no later than 12:00 Noon, New York
City time, request each Lender (including the Swingline Lender in its capacity
as a Lender having a Revolving Credit Commitment) to make, and each Lender
hereby agrees to make, a Revolving Credit Loan, in an amount equal to such
Lender's Revolving Credit Commitment Percentage of the aggregate amount of the
Swingline Loans (the "Refunded Swingline Loans") outstanding on the date of such
notice, to repay the Swingline Lender. Each Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at the New York
office of the Administrative Agent specified in subsection 13.2 in immediately
available funds, not later than 10:00 A.M., New York City time, one Business Day
after the date of such notice. The proceeds of such Revolving Credit Loans shall
be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full such Refunded Swingline Loans if such deficiency is
not otherwise reimbursed by the Borrower on the Business Day following a written
request for such reimbursement to the Borrower by the Swingline Lender.
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(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to subsection 2.4(b), one of the events described
in subsection 10(e) shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the Swingline Lender in
its sole discretion, Revolving Credit Loans may not be made as contemplated by
subsection 2.4(b), each Lender shall, on the date such Revolving Credit Loan was
to have been made pursuant to the notice referred to in subsection 2.4(b) (the
"Refunding Date"), purchase for cash an undivided participating interest in the
then outstanding Swingline Loans by paying to the Swingline Lender an amount
(the "Swingline Participation Amount") equal to (i) such Lender's Revolving
Credit Commitment Percentage times (ii) the sum of the aggregate principal
amount of Swingline Loans then outstanding that were to have been repaid with
such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has
received from any Lender such Lender's Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Lender will return to the Swingline Lender any
portion thereof previously distributed to it by the Swingline Lender.
(e) Each Lender's obligation to make the Loans referred to in
subsection 2.4(b) and to purchase participating interests pursuant to subsection
2.4(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or the Borrower may have against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 7; (iii) any adverse
change in the condition (financial or otherwise) of the Borrower; (iv) any
breach of this Agreement or any other Loan Document by the Borrower or any other
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
2.5 Facility Fee; Utilization Fee. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee
for the period from and including the Fee Commencement Date to the Termination
Date, computed at the Facility Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender (regardless of usage) during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a utilization fee for each Excess Utilization Day
during the period from and including the Fee Commencement Date to the
Termination Date, computed at the Utilization Fee Rate on the average daily
amount of the Aggregate Total Outstandings of such Lender for each
30
Excess Utilization Day during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.6 Termination or Reduction of Commitments. The Borrower
shall have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
that no such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date thereof,
either (a) the Aggregate Available Revolving Credit Commitments would not be
greater than or equal to zero or (b) the Available Revolving Credit Commitments
of any Lender would not be greater than or equal to zero. Any such reduction
shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall
reduce permanently the Revolving Credit Commitments then in effect. The
Administrative Agent shall give each Lender prompt notice of any notice received
from the Borrower pursuant to this subsection 2.6.
2.7 Repayment of Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date applicable to such Lender (or such earlier
date on which the Revolving Credit Loans become due and payable pursuant to
Section 10). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Revolving Credit Loans from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 3.4.
2.8 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. LIBO Rate CAF Advance
may be denominated in Dollars or any other available and freely-convertible
eurocurrency acceptable to the bidding Lender, and Fixed Rate CAF Advances shall
be denominated in Dollars. CAF Advances may be borrowed in amounts such that the
amount of Aggregate Total Outstandings of all Lenders at any time shall not
exceed the Aggregate Revolving Credit Commitments at such time. Within the
limits and on the conditions hereinafter set forth with respect to CAF Advances,
the Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.9 Procedure for CAF Advance Borrowing. (a) The Borrower
shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, in the case of CAF Advances to be denominated in a currency other
than Dollars, and amount in such currency the Dollar Equivalent of which is
equal to $5,000,000 or $1,000,000, as the case may be) and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date
31
for each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) not less than one month nor more than twelve months after the Borrowing
Date therefor, in the case of a LIBO CAF Advance and (iii) not later than the
Termination Date, in the case of any CAF Advance. The Administrative Agent shall
notify each Lender promptly by facsimile transmission of the contents of each
CAF Advance Request received by the Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at the applicable Eurocurrency Rate
plus (or minus) a margin determined by such Lender in its sole discretion for
each such CAF Advance. Any such irrevocable offer shall be made by delivering a
CAF Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date and the aggregate maximum amount of CAF Advances
for all CAF Advance Maturity Dates which such Lender would be willing
to make (which amounts may, subject to subsection 2.8, exceed such
Lender's Revolving Credit Commitment); and
(ii) the margin above or below the applicable
Eurocurrency Rate at which such Lender is willing to make each such CAF
Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the Borrowing
Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date, and the aggregate maximum amount for all CAF
Advance Maturity Dates, which such Lender would be willing to make
(which amounts may, subject to subsection 2.8, exceed such Lender's
Revolving Credit Commitment); and
(ii) the rate of interest at which such Lender is
willing to make each such CAF Advance.
32
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative
Agent (immediately confirmed by delivery to the Administrative Agent of
a CAF Advance Confirmation by facsimile transmission) (A) subject to
the provisions of subsection 2.9(e), accept one or more of the offers
made by any Lender or Lenders pursuant to subsection 2.9(b) or
subsection 2.9(c), as the case may be, and (B) reject any remaining
offers made by Lenders pursuant to subsection 2.9(b) or subsection
2.9(c), as the case may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF
Advance Maturity Date specified by any Lender in its CAF Advance Offer
shall not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted
for all CAF Advance Maturity Dates specified by any Lender in its CAF
Advance Offer shall not exceed the aggregate maximum amount specified
in such CAF Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF
Advances for any CAF Advance Maturity Date in an aggregate principal
amount in excess of the maximum principal amount requested in the
related CAF Advance Request; and
(iv) if the Borrower accepts any of such offers, it
must accept offers based solely upon pricing for each relevant CAF
Advance Maturity Date and upon no other criteria whatsoever, and if two
or more Lenders submit offers for any CAF Advance Maturity Date at
identical pricing and the Borrower accepts any of such offers but does
not wish to (or, by reason of the limitations set forth in subsection
2.8, cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such
Lenders in amounts allocated among them
33
pro rata according to the amounts offered by such Lenders (with
appropriate rounding, in the sole discretion of the Borrower, to assure
that each accepted CAF Advance is an integral multiple of $1,000,000
or, in the case of CAF Advances to be denominated in a currency other
than Dollars, an amount in such currency the Dollar Equivalent of which
is approximately equal to $1,000,000); provided that if the number of
Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions of this paragraph,
the CAF Advance to be made by any such Lender would be less than
$5,000,000 (or, in the case of CAF Advances to be denominated in a
currency other than Dollars, an amount in such currency the Dollar
Equivalent of which is approximately equal to $5,000,000) principal
amount, the number of such Lenders shall be reduced by the
Administrative Agent by lot until the CAF Advances to be made by each
such remaining Lender would be in a principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof (or, in the case
of CAF Advances to be denominated in a currency other than Dollars, an
amount in such currency the Dollar Equivalent of which is approximately
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof).
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.9(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.9(d)(ii)
one or more of the offers made by any Lender or Lenders, the Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request (in
the case of CAF Advances denominated in Dollars) and before the funding time for
the relevant currency from time to time specified by the Administrative Agent by
notice to the Lenders (in the case of CAF Advances denominated in any currency
other than Dollars), each Lender whose CAF Advance Offer has been accepted shall
make available to the Administrative Agent the amount of CAF Advances to be made
by such Lender, in immediately available funds, at the funding office for the
relevant currency specified from time to time by the Administrative Agent by
notice to the Lenders. The Administrative Agent will make such funds available
to the Borrower as soon as practicable on such date at such office of the
Administrative Agent. As soon as practicable after each Borrowing Date, the
Administrative Agent shall notify each Lender of the aggregate amount of CAF
Advances advanced on such Borrowing Date and the respective CAF Advance Maturity
Dates thereof.
2.10 Repayment of CAF Advances. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date the then unpaid principal amount of such CAF Advance. The Borrower shall
have the right to prepay any principal amount of any CAF Advance only with the
consent of the Lender to which such CAF Advance is owed. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of each CAF
Advance from the Borrowing Date to the applicable CAF Advance Maturity Date at
the rate of
34
interest specified in the CAF Advance Offer accepted by the Borrower in
connection with such CAF Advance (calculated on the basis of a 360-day year for
actual days elapsed), payable on each applicable CAF Advance Interest Payment
Date.
2.11 Certain Restrictions with Respect to CAF Advances. A CAF
Advance Request may request offers for CAF Advances to be made on not more than
one Borrowing Date and to mature on not more than three CAF Advance Maturity
Dates. No CAF Advance Request may be submitted earlier than five Business Days
after submission of any other CAF Advance Request.
2.12 Multicurrency Commitments. Subject to the terms and
conditions hereof, each Multicurrency Lender severally agrees to make revolving
credit loans (each, a "Multicurrency Loan") in any Available Foreign Currency to
the Borrower from time to time during the Commitment Period so long as after
giving effect thereto (a) the Available Multicurrency Commitment of each
Multicurrency Lender is greater than or equal to zero, (b) the aggregate
outstanding principal amount of Multicurrency Loans, plus the aggregate
outstanding principal amount of Local Currency Loans does not exceed an amount
the Dollar Equivalent of which is $400,000,000 and (c) the Aggregate Total
Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments. During the Commitment Period, the Borrower may use the
Multicurrency Commitments by borrowing, repaying the Multicurrency Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Any Multicurrency Lender may cause its Multicurrency Loans to
be made by any branch, affiliate or international banking facility of such
Multicurrency Lender, provided, that such Multicurrency Lender shall remain
responsible for all of its obligations hereunder and no additional taxes, costs
or other burdens shall be imposed upon the Borrower or the Administrative Agent
as a result thereof.
2.13 Repayment of Multicurrency Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multicurrency Lender the then unpaid principal amount of each Multicurrency
Loan of such Multicurrency Lender on the Termination Date and on such other
date(s) and in such other amounts as may be required from time to time pursuant
to this Agreement. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Multicurrency Loans advanced to it and from time
to time outstanding until payment thereof in full at the rates per annum, and on
the dates, set forth in subsection 3.4.
2.14 Procedure for Multicurrency Borrowing. The Borrower may
request the Multicurrency Lenders to make Multicurrency Loans during the
Commitment Period on any Business Day by delivering a Notice of Multicurrency
Loan Borrowing. Each borrowing under the Multicurrency Commitments shall be in
an amount in an Available Foreign Currency the Dollar Equivalent of which is
equal to at least $1,000,000 (or, if the then Aggregate Available Multicurrency
Commitments are less than $1,000,000, such lesser amount). Upon receipt of any
such Notice of Multicurrency Borrowing from the Borrower, the Administrative
Agent shall promptly notify each Multicurrency Lender thereof. Not later than
the funding time for the relevant Available Foreign Currency specified from time
to time by the Administrative Agent by notice to the Borrower and the
Multicurrency Lenders each Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of
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Multicurrency Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the funding office for the relevant Available Foreign
Currency specified from time to time by the Administrative Agent by notice to
the Borrower and the Multicurrency Lenders in the relevant Available Foreign
Currency and in immediately available funds. The amounts made available by each
Multicurrency Lender will then be made available to the Borrower at such funding
office and in like funds as received by the Administrative Agent.
2.15 Termination or Reduction of Multicurrency Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent (which shall give prompt notice thereof to
each Multicurrency Lender), to terminate the Multicurrency Commitments or, from
time to time, to reduce the amount of the Multicurrency Commitments; provided
that no such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date thereof,
the Available Multicurrency Commitment of any Multicurrency Lender would be less
than zero. Any such reduction shall be in an amount equal to U.S. $1,000,000 or
a whole multiple of U.S. $100,000 in excess thereof and shall reduce permanently
the Multicurrency Commitments then in effect.
2.16 Borrowings of Revolving Credit Loans and Refunding of
Loans. (a) If on any Borrowing Date on which the Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the aggregate principal amount of the Requested Multicurrency Loans
exceeds the Aggregate Available Multicurrency Commitments on such Borrowing Date
(before giving effect to the making and payment of any Loans required to be made
pursuant to this subsection 2.16 on such Borrowing Date) and, (ii) the Dollar
Equivalent of the amount of such excess is less than or equal to the aggregate
Available Revolving Credit Commitments of all Non-Multicurrency Lenders (before
giving effect to the making and payment of any Loans pursuant to this subsection
2.16 on such Borrowing Date), each Non-Multicurrency Lender shall make a
Revolving Credit Loan to the Borrower on such Borrowing Date, and the proceeds
of such Revolving Credit Loans shall be simultaneously applied to repay
outstanding Revolving Credit Loans, Local Currency Loans and/or Multicurrency
Loans of the Multicurrency Lenders (as directed by the Borrower) in each case in
amounts such that, after giving effect to (1) such borrowings and repayments and
(2) the borrowing from the Multicurrency Lenders of the Requested Multicurrency
Loans, the Committed Outstanding Percentage of each Lender will equal (as nearly
as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each Non-Multicurrency Lender to the Administrative Agent at its
New York office specified in subsection 13.2 in Dollars and in immediately
available funds and the Administrative Agent shall apply the proceeds of such
Revolving Credit Loans toward repayment of outstanding Revolving Credit Loans
and/or Local Currency Loans of the Multicurrency Lenders (as directed by the
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by the Borrower (but not in
any event greater than the Aggregate Available Multicurrency Commitments after
giving effect to the making of such repayment of any Loans on such Borrowing
Date) and (II) the Borrower shall
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pay to the Administrative Agent for the account of the Lenders whose Loans to
the Borrower are repaid on such Borrowing Date pursuant to this subsection 2.16
all interest accrued on the amounts repaid to the date of repayment, together
with any amounts payable pursuant to subsection 3.11 in connection with such
repayment.
(b) Subject to the limitations on borrowings contained in a
given Local Currency Facility, if on any Borrowing Date on which a Foreign
Subsidiary Borrower has requested Local Currency Lenders to make Local Currency
Loans (the "Requested Local Currency Loans") under a Local Currency Facility to
which such Foreign Subsidiary Borrower and Local Currency Lenders are parties,
(i) the aggregate principal amount of the Requested Local Currency Loans (A)
exceeds the aggregate available amount of the commitments of such Local Currency
Lenders under such Local Currency Facility on such Borrowing Date (before giving
effect to the making and payment of any Revolving Credit Loans required to be
made pursuant to this subsection 2.16 on such Borrowing Date) or (B) together
with the aggregate then outstanding principal amount of Multicurrency Loans
would exceed an amount of which the Dollar Equivalent is $400,000,000, (ii)
after giving effect to the Requested Local Currency Loans, the Dollar Equivalent
of the aggregate outstanding principal amount of Local Currency Loans of such
Foreign Subsidiary Borrower will be less than or equal to the aggregate
commitments of such Local Currency Lenders under such Local Currency Facility
and (iii) the Dollar Equivalent of the amount of the excess described in clause
(i) above is less than or equal to the Aggregate Available Revolving Credit
Commitments of all Lenders other than such Local Currency Lenders (before giving
effect to the making and payment of any Revolving Credit Loans pursuant to this
subsection 2.16 on such Borrowing Date), each such other Lender shall make a
Revolving Credit Loan to the Borrower, on such Borrowing Date, and the proceeds
of such Revolving Credit Loans shall be simultaneously applied to repay
outstanding Revolving Credit Loans, Multicurrency Loans and/or Local Currency
Loans of such Local Currency Lenders (as directed by the Borrower) in each case
in amounts such that, after giving effect to (1) such borrowings and repayments
and (2) the borrowing from such Local Currency Lenders of the Requested Local
Currency Loans, the Committed Outstandings Percentage of each Lender will equal
(as nearly as possible) its Revolving Credit Commitment Percentage and the
Dollar Equivalent of the aggregate outstanding principal amount of Multicurrency
Loans and Local Currency Loans will not exceed $400,000,000. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each such other Lender to the Administrative Agent at its New York
office specified in subsection 13.2 in Dollars and in immediately available
funds and the Administrative Agent shall apply the proceeds of such Revolving
Credit Loans toward the repayment of outstanding Revolving Credit Loans,
Multicurrency Loans and/or Local Currency Loans of such Local Currency Lenders
(as directed by the Borrower) and (y) concurrently with the repayment of such
Revolving Credit Loans on such Borrowing Date, (I) such Local Currency Lenders
shall, in accordance with the applicable provisions hereof, make the Requested
Local Currency Loans in an aggregate amount equal to the amount so requested by
such Foreign Subsidiary Borrower and (II) the relevant Foreign Subsidiary
Borrower shall pay to the Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.16 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 3.11 in
connection with such repayment.
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(c) If any borrowing of Revolving Credit Loans is required
pursuant to this subsection 2.16, the Borrower shall notify the Administrative
Agent in the manner provided for Revolving Credit Loans in subsection 2.2,
except that the minimum borrowing amounts set forth in subsection 2.2 shall not
be applicable to the extent that such minimum borrowing amounts exceed the
amounts of Revolving Credit Loans required to be made pursuant to this
subsection 2.16.
Section 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 Optional and Mandatory Prepayments. (a) The Borrower may
at any time and from time to time prepay the Revolving Credit Loans, in whole or
in part, without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days' irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein.
(b) The Borrower may at any time and from time to time prepay,
without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Multicurrency Loans and is made on a
day other than the last day of the Interest Period with respect thereto), the
Multicurrency Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the Administrative Agent specifying the date and amount of
prepayment. Upon the receipt of any such notice, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments of Multicurrency Loans shall be in an
aggregate principal amount the Dollar Equivalent of which is at least $1,000,000
or an integral multiple of $100,000 in excess thereof.
(c) (i) If, at any time during the Commitment Period, for any
reason the Aggregate Total Outstandings of all Lenders exceed the Aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately prepay the Revolving Credit Loans and/or the
Multicurrency Loans in amounts such that the sum of (A) the aggregate principal
amount of the Revolving Credit Loans so prepaid and (B) the Dollar Equivalent of
the aggregate principal amount of the Multicurrency Loans so prepaid, equals or
exceeds the amount of such excess.
(ii) If, at any time during the Commitment Period, for any
reason either (x) the Aggregate Total Outstandings of all Multicurrency Lenders
exceed the Aggregate Revolving Credit Commitments of the Multicurrency Lenders
and/or Local Currency Loans, (y) the Aggregate Multicurrency Outstandings exceed
the aggregate Multicurrency Commitments or (z) the sum of the Aggregate
Multicurrency Outstandings plus the Dollar Equivalent of the aggregate
outstanding principal amount of Local Currency Loans exceeds the aggregate
Multicurrency Commitments, the Borrower shall, without notice or demand,
immediately prepay
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the Revolving Credit Loans and/or the Multicurrency Loans and/or Local Currency
Loans and/or cash collateralize the L/C Obligations in amounts such that any
such excess is eliminated.
(iii) Each prepayment of Loans pursuant to this subsection
3.1(c) shall be accompanied by any amounts payable under subsection 3.11 in
connection with such prepayment.
(iv) Notwithstanding the foregoing, mandatory prepayments
of Revolving Credit Loans or Multicurrency Loans that would otherwise be
required pursuant to this subsection 3.1(c) solely as a result of fluctuations
in Exchange Rates from time to time shall only be required to be made pursuant
to this subsection 3.1(c) on the last Business Day of each month on the basis of
the Exchange Rate in effect on such Business Day.
(d) If a Receivables Transaction is consummated on any date,
on the next Business Day, the Borrower shall prepay the Revolving Credit Loans
(or at the option of the Borrower, the Revolving Credit Loans under the Existing
Credit Agreement), Multicurrency Loans (or at the option of the Borrower, the
Multicurrency Loans under the Existing Credit Agreement), Local Currency Loans
(or at the option of the Borrower, the Local Currency Loans under the Existing
Credit Agreement) and/or cash collateralize the L/C Obligations in an aggregate
amount equal to the Receivables Transaction Prepayment Amount in respect of such
Receivables Transaction.
3.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
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(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving a Notice of Multicurrency Loan Continuation, provided, that if
the Borrower shall fail to give such Notice of Multicurrency Loan Continuation
by the deadline specified therefor in Schedule II, such Multicurrency Loans
shall automatically be continued for an Interest Period of one month.
3.3 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Revolving Credit Loans and
Multicurrency Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (ii) the aggregate principal amount
of the Multicurrency Loans comprising each Multicurrency Tranche shall be in an
amount the Dollar Equivalent of which is at least $5,000,000. In no event shall
there be more than 7 Tranches outstanding at any time.
3.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) Each Multicurrency Loan shall bear interest for each day
that it is outstanding at a rate per annum equal to the Eurocurrency Rate plus
the Applicable Margin in effect for such day.
(d) Each CAF Advance shall bear interest at the rate
determined in accordance with subsection 2.9.
(e) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any facility fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, facility fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
facility fee or other amount is paid in full (as well after as before judgment).
(f) Interest pursuant to this subsection shall be payable in
arrears on each Interest Payment Date or CAF Advance Interest Payment Date, as
the case may be, provided that interest accruing pursuant to paragraph (e) of
this subsection shall be payable from time to time on demand.
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3.5 Computation of Interest and Fees. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
3.4(a), (b) or (d).
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease to
be a Reference Lender, and if, as a result, there shall only be one Reference
Lender remaining, the Administrative Agent (after consultation with the Lenders
and with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the Borrower and the Lenders, designate another
Lender as a Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 3.6, be determined on
the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
3.6 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders or the Majority Multicurrency Lenders, as the case may be,
that the Eurocurrency Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans or
41
Multicurrency Loans, as the case may be, requested to be made on the first day
of such Interest Period shall be made as ABR Loans, provided, that,
notwithstanding the provisions of subsection 2.2 or 2.14, the Borrower may
cancel the request for such Eurodollar Loan or Multicurrency Loan, as the case
may be, by written notice to the Administrative Agent one Business Day prior to
the first day of such Interest Period and the Borrower shall not be subject to
any liability pursuant to subsection 3.11 with respect to such cancelled
request, (x) any Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as ABR Loans, (y) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to ABR Loans and (z) any Multicurrency Loans to which such
Interest Period relates shall be repaid on the first day of such Interest
Period. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans or Multicurrency Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
3.7 Pro Rata Treatment and Payments. (a) Except as provided in
subsection 2.16, each payment (other than optional prepayments) of principal or
interest in respect of the Loans shall be made pro rata according to the amounts
then due and owing to the respective Lenders.
(b) Except as provided in subsection 2.16, each borrowing by
the Borrower of Revolving Credit Loans from the Lenders hereunder shall be made
pro rata according to the Funding Commitment Percentages of the Lenders in
effect on the date of such borrowing. Each payment by the Borrower on account of
any facility fee hereunder and any reduction of the Revolving Credit Commitments
of the Lenders shall be allocated by the Administrative Agent among the Lenders
pro rata according to the Revolving Credit Commitment Percentages of the
Lenders. Except as provided in subsection 2.16, each payment (including each
prepayment) by the Borrower on account of principal of and interest on the
Revolving Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then due and owing
to the Lenders. All payments (including prepayments) to be made by the Borrower
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 13.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans or Multicurrency
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a Eurodollar Loan or a
Multicurrency Loan becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day (and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
42
(c) Each borrowing of Multicurrency Loans by the Borrower
shall be made, and any reduction of the Multicurrency Commitments shall be
allocated by the Administrative Agent, pro rata according to the Multicurrency
Commitment Percentages of the Multicurrency Lenders. Each payment (including
each prepayment) by the Borrower on account of principal of and interest on
Multicurrency Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Multicurrency Loans then
due and owing by the Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by the Borrower on account of Multicurrency
Loans hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without set-off or counterclaim and shall be made at or before the
payment time for the currency of such Multicurrency Loan from time to time
specified by the Administrative Agent by notice to the Multicurrency Lenders and
the Borrower, on the due date thereof to the Administrative Agent, for the
account of the Multicurrency Lenders, at the payment office for the currency of
such Multicurrency Loan from time to time specified by the Administrative Agent
by notice to the Multicurrency Lenders and the Borrower, in the currency of such
Multicurrency Loan and in immediately available funds. The Administrative Agent
shall distribute such payments to the Multicurrency Lenders entitled to receive
the same promptly upon receipt in like funds as received.
(d) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to (i) the daily average Federal Funds Effective Rate (in the case of
a borrowing of Revolving Credit Loans or CAF Advances denominated in Dollars)
and (ii) the Administrative Agent's reasonable estimate of its average daily
cost of funds (in the case of a borrowing of Multicurrency Loans or CAF Advances
denominated in a currency other than Dollars), in each case for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon equal to (i) the rate per annum applicable to ABR
Loans hereunder (in the case of a borrowing of Revolving Credit Loans or CAF
Advances or CAF Advances denominated in Dollars) and (ii) the Administrative
Agent's reasonable estimate of its average daily cost of funds plus the
Applicable Margin applicable to Multicurrency Loans (in the case of a borrowing
of Multicurrency Loans or CAF Advances denominated in a currency other than
Dollars), on demand, from the Borrower.
3.8 Illegality. Notwithstanding any other provision herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans or Multicurrency Loans as
contemplated by this Agreement, (a) the commitment of such Lender
43
hereunder to make Eurodollar Loans or Multicurrency Loans, continue Eurodollar
Loans or Multicurrency Loans as such and convert ABR Loans to Eurodollar Loans
shall forthwith be cancelled, (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law and (c) such Lender's
Multicurrency Loans shall be prepaid on the last day of the then current
Interest Period with respect thereto. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to subsection 3.11.
3.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof (or, in the case of LIBO Rate CAF Advances, made
subsequent to acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application, any Eurodollar Loan, Multicurrency Loan or
LIBO Rate CAF Advance made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by subsection 3.10 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, Multicurrency Loans, LIBO Rate CAF
Advances or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduced amount
receivable; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(b) If any Lender shall have determined that after the date hereof the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law)
44
from any Governmental Authority made subsequent to the date hereof shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, the
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction; provided, that the Borrower
shall not be required to pay to any Lender any amounts under this paragraph for
any period prior to the date on which such Lender gives notice to the Borrower
that such amounts are payable unless such Lender gives such notice within 180
days after it became aware or should have become aware of the event giving rise
to such payment obligation.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
3.10 Taxes. (a) All payments made by the Borrower under any
Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, any Loan Document). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Loan Document, the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in such Loan
Document, provided, however, that the Borrower shall not be required to increase
any such amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required
45
receipts or other required documentary evidence, the Borrower shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection shall survive the
termination of this Agreement and each other Loan Document and the payment of
the Loans and all other amounts payable hereunder and thereunder.
(b) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit J and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to any Loan Document (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(c) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
3.11 Indemnity. The Borrower agrees to indemnify 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) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans, Local
Currency Loans, Multicurrency Loans or CAF Advances after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower or any Foreign Subsidiary Borrower in
46
making any prepayment after the Borrower or such Foreign Subsidiary Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
any other Loan Document or (c) the making of a prepayment of Eurodollar Loans,
Local Currency Loans, Multicurrency Loans or CAF Advances or the conversion of
Eurodollar Loans to ABR Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) or, in the case of CAF Advances, the applicable CAF
Advance Maturity Date (or proposed CAF Advance Maturity Date), in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin or any positive margin applicable to CAF Advances
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Bank on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. This covenant shall survive the termination of
this Agreement and each other Loan Document and the payment of the Loans and all
other amounts payable hereunder and thereunder.
3.12 Change of Lending Office; Removal of Lender. Each Lender
agrees that if it makes any demand for payment under subsection 3.9 or 3.10(a),
or if any adoption or change of the type described in subsection 3.8 shall occur
with respect to it, (i) it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under subsection 3.9 or 3.10(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 3.8 or (ii) it will, upon at least
five Business Days' notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions
of subsection 13.6(c), to one or more Assignees designated by the Borrower all,
but not less than all, of such Lender's rights and obligations hereunder (other
than rights in respect of such Lender's outstanding CAF Advance), without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender plus any accrued but unpaid interest thereon and any
accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Commitment hereunder at
such time (including any amount that would be payable under subsection 3.11 if
such assignment were, instead, a prepayment in full of all amounts owing to such
Lender) shall be paid to such Lender.
3.13 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) in the case of Revolving Credit Loans and Swingline
Loans, the amount of each Revolving Credit
47
Loan or Swingline Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) in the case of Multicurrency Loans, the amount and
currency of each Multicurrency Loans and each Interest Period applicable
thereto, (iii) in the case of CAF Advances, the amount and currency of each CAF
Advance made hereunder, the CAF Advance Maturity Date thereof, the interest rate
applicable thereto and each CAF Advance Interest Payment Date applicable
thereto, (iv) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (v) both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "Revolving Credit Note").
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the CAF Advances of
such Lender, substantially in the form of Exhibit B with appropriate insertions
(a "CAF Advance Note").
Section 4. LOCAL CURRENCY FACILITIES
4.1 Terms of Local Currency Facilities. (a) Subject to the
provisions of this Section 4, the Borrower may in its discretion from time to
time designate any Subsidiary of the Borrower organized under the laws of any
jurisdiction outside the United States as a "Foreign Subsidiary Borrower" and
any Qualified Credit Facility to which such Foreign Subsidiary Borrower and any
one or more Lenders (or its Affiliates, agencies or branches) is a party as a
"Local Currency Facility", with the consent of each such Lender in its sole
discretion, by delivering a Local Currency Facility Addendum to the
Administrative Agent and the Lenders (through the Administrative Agent) executed
by the Borrower, each such Foreign Subsidiary Borrower and each such Lender,
provided, that on the effective date of such designation no Event of Default
shall have occurred and be continuing. Concurrently with the delivery of a Local
Currency Facility Addendum, the Borrower or the relevant Foreign Subsidiary
Borrower shall furnish to the Administrative Agent copies of all documentation
executed and delivered by such Foreign Subsidiary Borrower in connection
therewith, together with, if applicable, an English translation thereof. Except
as otherwise provided in this Section 4 or in the definition of "Qualified
Credit Facility" in subsection 1.1, the terms and conditions of each Local
Currency Facility shall be determined by mutual agreement of the relevant
Foreign Subsidiary Borrower(s)
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and Local Currency Lender(s). The documentation governing each Local Currency
Facility shall (i) contain an express acknowledgement that such Local Currency
Facility shall be subject to the provisions of this Section 4, (ii) if more than
one Lender is a party thereto, designate a Local Currency Facility Agent for
such Local Currency Facility and (iii) include an opinion of counsel reasonably
satisfactory to the Administrative Agent from the jurisdiction in which such
Local Currency Facility is established that the documentation governing such
Local Currency Facility is enforceable in accordance with its terms. Each of the
Borrower and, by agreeing to any Local Currency Facility designation as
contemplated hereby, each relevant Local Currency Lender (if any) party thereto
which is an Affiliate, branch or agency of a Lender, acknowledges and agrees
that each reference in this Agreement to any Lender shall, to the extent
applicable, be deemed to be a reference to such Local Currency Lender. In the
event of any inconsistency between the terms of this Agreement and the terms of
any Local Currency Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Local Currency Facility
shall set forth (i) the maximum amount (expressed in Dollars) available to be
borrowed from all Local Currency Lenders under such Local Currency Facility (as
the same may be reduced from time to time, a "Local Currency Facility Maximum
Borrowing Amount") and (ii) with respect to each Local Currency Lender party to
such Local Currency Facility, the maximum amount (expressed in Dollars)
available to be borrowed from such Local Currency Lender thereunder (as the same
may be reduced from time to time, a "Local Currency Lender Maximum Borrowing
Amount").
(c) Except as otherwise required by applicable law, in no
event shall the Local Currency Lenders party to a Local Currency Facility have
the right to accelerate the Local Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Local Currency Loans prior to
the earlier of the stated termination date in respect thereof or the Termination
Date, except, in each case, in connection with an acceleration of the Loans or a
termination of the Commitments pursuant to Section 10 hereof, provided, that
nothing in this paragraph (c) shall be deemed to require any Local Currency
Lender to make a Local Currency Loan if the applicable conditions precedent to
the making of such Local Currency Loan set forth in the documentation governing
the relevant Local Currency Facility have not been satisfied. No Local Currency
Loan may be made under a Local Currency Facility if (i) after giving effect
thereto, the conditions precedent in subsection 7.2 hereof would not be
satisfied or (ii) after giving effect to the making of such Local Currency Loan
and the simultaneous application of the proceeds thereof, (A) the Aggregate
Total Outstandings of all Lenders at any time exceeds the Aggregate Revolving
Credit Commitments or (B) the Dollar Equivalent of the aggregate outstanding
principal amount of Multicurrency Loans and Local Currency Loans would exceed
$400,000,000.
(d) The relevant Foreign Subsidiary Borrower shall furnish to
the Administrative Agent copies of any amendment, supplement or other
modification (including any change in commitment amounts or in the Local
Currency Lenders participating in any Local Currency Facility) to the terms of
any Local Currency Facility promptly after the effectiveness thereof (together
with, if applicable, an English translation thereof). If any such amendment,
supplement or other modification to a Local Currency Facility shall (i) add a
Local Currency Lender as a Local Currency Lender thereunder or (ii) change the
Local Currency Facility Maximum Borrowing Amount or any Local Currency Lender
Maximum Borrowing Amount
49
with respect thereto, the Borrower shall promptly furnish an appropriately
revised Local Currency Facility Addendum, executed by the Borrower, the relevant
Foreign Subsidiary Borrower and the affected Local Currency Lenders (or any
agent acting on their behalf), to the Administrative Agent and the Lenders
(through the Administrative Agent).
(e) The Borrower may terminate its designation of a facility
as a Local Currency Facility, with the consent of each Local Currency Lender
party thereto in its sole discretion, by written notice to the Administrative
Agent, which notice shall be executed by the Borrower, the relevant Foreign
Subsidiary Borrower and each Local Currency Lender party to such Local Currency
Facility (or any agent acting on their behalf). Once notice of such termination
is received by the Administrative Agent, such Local Currency Facility and the
loans and other obligations outstanding thereunder shall immediately cease to be
subject to the terms of this Agreement.
4.2 Reporting of Local Currency Outstandings. (a) On the date
of the making of any Local Currency Loan having a maturity of 30 or more days to
a Foreign Subsidiary Borrower and on the last Business Day of each month on
which a Foreign Subsidiary Borrower has any outstanding Local Currency Loans,
the Local Currency Facility Agent for such Foreign Subsidiary Borrower, shall
deliver to the Administrative Agent a Notice of Local Currency Outstandings and
the Administrative Agent shall deliver a copy of such Notice of Local Currency
Outstandings to the Lenders. The Administrative Agent will, at the request of
any Local Currency Facility Agent, advise such Local Currency Facility Agent of
the Exchange Rate used by the Administrative Agent in calculating the Dollar
Equivalent of Local Currency Loans under the related Local Currency Facility on
any date.
(b) For purposes of any calculation under this Agreement in
which the amount of the Aggregate Local Currency Outstandings of any Lender is a
component, the Administrative Agent shall make such calculation on the basis of
the Notices of Local Currency Outstanding received by it at least two Business
Days prior to the date of such calculation.
Section 5. LETTERS OF CREDIT
5.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in subsection 5.4(a), agrees to issue letters of credit ("Letters of
Credit") for the account of the Borrower on any Business Day during the
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars, (ii) have a face amount of at least
$1,000,000 (unless otherwise agreed by the Issuing Lender) and (iii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Termination Date, provided
that any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond
the date referred to in clause (y) above).
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(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
5.3 Fees and Other Charges. (a) The Borrower will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans, shared ratably among the
Revolving Lenders and payable quarterly in arrears on each L/C Fee Payment Date
after the issuance date. In addition, the Borrower shall pay to the Issuing
Lender for its own account a fronting fee of 0.125% per annum on the undrawn and
unexpired amount of each Letter of Credit, payable quarterly in arrears on each
L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
5.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions set forth below, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's
Revolving Credit Commitment Percentage in the Issuing Lender's obligations and
rights under and in respect of each Letter of Credit and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Commitment Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed.
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(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to subsection 5.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 5.4(a) is not made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans. A certificate of the
Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 5.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
5.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on the Business Day next succeeding the
Business Day on which the Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by the Issuing
Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by the Issuing Lender in connection with
such payment. Each such payment shall be made to the Issuing Lender in Dollars
and in immediately available funds. Interest shall be payable on any such
amounts from the date on which the relevant draft is paid until payment in full
at the rate set forth in (i) until the Business Day next succeeding the date of
the relevant notice, subsection 3.4(b) and (ii) thereafter, subsection 3.4(e).
Each drawing under any Letter of Credit shall (unless an event of the type
described in clause (i) or (ii) of Section 10(e) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified
in subsection 5.4 for funding by L/C Participants shall apply) constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
subsection 2.2 of ABR Loans in the amount of such drawing (and the minimum
borrowing amount in such subsection shall not apply to such borrowing). The
Borrowing Date with respect to such borrowing shall be the first date on which a
borrowing of Revolving Credit Loans could be made, pursuant to subsection 2.2,
if the Administrative Agent had received a notice of such borrowing at the time
the Administrative Agent receives notice from the relevant Issuing Lender of
such drawing under such Letter of Credit.
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5.6 Obligations Absolute. The Borrower's obligations under
this Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for,
and the Borrower's Reimbursement Obligations under subsection 5.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
5.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
5.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 5, the provisions of this Section 5 shall apply.
Section 6. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that:
6.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 2000 and December
31, 1999 and the related consolidated statements of operations and of cash flows
for the fiscal years ended on such dates, reported on by Ernst & Young LLP,
copies of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the fiscal years then
ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at March 31,
53
2001 or, if later and prior to the Signing Date, the date of the Borrower's most
recent publicly available Form 10-Q and the related unaudited consolidated
statements of operations and of cash flows for the fiscal period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and materially correct and present fairly
(subject to normal year-end audit adjustments) the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal period then ended. All such annual financial statements,
including the related schedules and notes thereto, were, as of the date
prepared, prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). The quarterly financial
statements have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions to Form
10-Q and Article 10 of Regulation S-X under the Securities Act of 1933.
Accordingly, such quarterly statements do not include all of the information and
footnotes required by GAAP for complete financial statements. In the opinion of
the Borrower, all adjustments (consisting only of normal recurring accruals)
considered necessary for a fair presentation have been included. Neither the
Borrower nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee Obligation,
material contingent liability or material liability for taxes, or any material
long-term lease or material unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto.
6.2 No Change. Since December 31, 2000 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation 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 and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement, any Notes and any
Applications and to authorize the execution, delivery and performance of the
Loan Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required with respect to the Borrower or any of its
Subsidiaries in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which
the Borrower is a party. This Agreement and each other Loan Document to which
the Borrower
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is, or is to become, a party has been or will be, duly executed and delivered on
behalf of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
6.6 No Material Litigation. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 2001 or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
6.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
6.8 Intellectual Property. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 2001 or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
Borrower and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which could not reasonably be expected to have a
Material Adverse Effect (the "Intellectual Property"). Except as disclosed in
the Borrower's Form 10-Q dated March 31, 2001 or, if later and prior to the
Signing Date, the date of the Borrower's most recent publicly available Form
10-Q, no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim, except for such claims that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the Borrower's Form 10-Q dated March 31, 2001 or, if
later and prior to the Signing Date, the date of the Borrower's most recent
publicly available Form 10-Q, the use of such Intellectual Property by the
Borrower and its Subsidiaries does not
55
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
6.9 Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be),
except to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
6.10 Federal Regulations. No part of the proceeds of any Loans
will be used in any manner which would violate Regulation U of the Board as now
and from time to time hereafter in effect.
6.11 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan other
than a Multiemployer Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code, where the liability which
could be reasonably expected to result could have a Material Adverse Effect;
provided, however, that with respect to any Multiemployer Plan, such
representation is made only to the knowledge of the Borrower. No termination of
a Single Employer Plan pursuant to Section 4041(c) or 4042 of ERISA has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and to the knowledge of the Borrower, neither the Borrower
nor any Commonly Controlled Entity would become subject to any liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made which
liability could be reasonably expected to result could have a Material Adverse
Effect. No such Multiemployer Plan is in Reorganization or Insolvent.
6.12 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
6.13 Purpose of Loans. The proceeds of the Loans shall be used
to finance the working capital and general corporate needs of the Borrower and
its Subsidiaries, including but not limited to acquisitions.
56
6.14 Environmental Matters. Except to the extent that the
failure of the following statements to be true and correct could not reasonably
be expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in amounts
or concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any Environmental
Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business") which could reasonably be expected to materially
interfere with the continued operation of the Properties or materially impair
the fair saleable value thereof.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower have knowledge or reason to believe that any such notice will
be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
6.15 Disclosure. The statements and information contained
herein and in any of the information provided to the Administrative Agent or the
Lenders in writing (other than financial projections) in connection with this
Agreement, taken as a whole, do not contain any
57
untrue statement of any material fact, or omit to state a fact necessary in
order to make such statements or information not misleading in any material
respect, in each case in light of the circumstances under which such statements
were made or information provided as of the date so provided. The financial
projections contained in the June 2001 Confidential Information Memorandum,
furnished to the Administrative Agent and the Lenders in writing in connection
with this Agreement have been prepared in good faith based upon assumptions
which were reasonable when such projections were made, it being acknowledged
that such projections are subject to the uncertainty inherent in all projections
of future results and that there can be no assurance that the results set forth
in such projections will in fact be realized.
Section 7. CONDITIONS PRECEDENT
7.1 Conditions to Initial Loans and Letters of Credit. The
agreement of each Lender to make the initial Loan requested to be made by it, or
to issue any Letter of Credit, is subject to the satisfaction on the Closing
Date of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized officer of
each Lender and the Borrower, with a counterpart for each Lender
(b) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Borrower,
dated the Closing Date, substantially in the form of Exhibit F, with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrower.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of the Closing Date.
(d) Repayment of 364-Day Credit Facility. All amounts
(including principal, interest and fees) due under the 364-Day Credit Facility
shall have been paid in accordance with the terms of the 364-Day Credit
Facility, and all commitments to extend credit thereunder shall have terminated.
(e) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion of
counsel to the Borrower (which opinion may be delivered in part by in-house
counsel to the Borrower), covering the matters set forth in Exhibit G. Such
legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably
require.
(f) Approvals. All governmental and third party approvals
necessary in connection with the execution, delivery and performance of this
Agreement and the other Loan Documents shall have been obtained and be in full
force and effect.
(g) Financial Statements; Pro Forma Projected Consolidated
Capitalization. The Lenders shall have received (i) satisfactory audited
consolidated financial statements of the
58
Borrower and its consolidated Subsidiaries for the two most recent fiscal years
ended prior to the Closing Date as to which such financial statements are
available and (ii) satisfactory unaudited interim consolidated financial
statements of the Borrower and its consolidated Subsidiaries for each quarterly
period ended subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which such financial statements
are available.
(h) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid and all expenses required to be paid by
the Borrower pursuant to the terms hereof and for which invoices have been
presented at least five (5) Business Days in advance, on or before the Closing
Date.
7.2 Conditions to Each Loan and Letter of Credit. The
agreement of each Lender to make any Loan requested to be made by it on any
date, or to issue any Letter of Credit, (including, without limitation, its
initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date (other than, in the case of any Loan made
after the Closing Date, the representations and warranties in subsections 6.2
and 6.6 which shall be true and correct in all material respects on and as of
the Closing Date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made, or Letter of Credit requested to be issued, on such date.
Each borrowing by the Borrower hereunder, and each request by the Borrower for
the issuance of a Letter of Credit, shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
Section 8. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
(or any of them) remain in effect, any Letter of Credit is outstanding or any
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Subsidiaries
to:
8.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days
after the end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of operations and
stockholders' equity and of cash flows for such year, setting forth in each case
in comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by Ernst &
59
Young LLP or other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations for such quarter and the portion
of the fiscal year through the end of such quarter and of cash flows of the
Borrower and its consolidated Subsidiaries for the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments);
(c) all such financial statements shall be complete and
correct in all material respects and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein); provided, that it is hereby
acknowledged that the quarterly financial statements delivered pursuant to
paragraph (b) above may not include all of the information and footnotes
required by GAAP for complete annual financial statements.
8.2 Certificates; Other Information. Furnish to the
Administrative Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 8.1(a) and 8.1(b), a certificate of a Responsible
Officer stating that such Officer has obtained no knowledge of any Default or
Event of Default that has occurred and is continuing except as specified in such
certificate, and including calculations demonstrating compliance with subsection
9.1;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its stockholders,
and within five days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority, and promptly after the same are issued, copies of all press releases
issued by the Borrower; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
8.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
60
8.4 Conduct of Business and Maintenance of Existence. (a)
Continue to engage in business of the same general type as conducted by it on
the Signing Date, (b) preserve, renew and keep in full force and effect its
corporate existence and (except as could not in the aggregate be reasonably
expected to have a Material Adverse Effect), (c) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
subsection 9.4 and (d) comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
8.5 Maintenance of Property; Insurance. Keep all property
necessary in its business in good working order and condition except to the
extent that failure to do so could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are adequate for conducting its business; and
furnish to each Lender, upon written request, full information as to the
insurance carried.
8.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (upon reasonable advance notice coordinated
through the Administrative Agent) to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
8.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time involving the Borrower
or any of its Subsidiaries, which in either case, could reasonably be expected
to have a Material Adverse Effect; and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan,
other than the termination of any Single Employer Plan pursuant to Section
4041(b) of ERISA where, in connection with any of
61
the foregoing, the amount of liability the Borrower or any Commonly Controlled
Entity could reasonably be expected to incur would be material.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
Section 9. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
(or any of them) remain in effect, any Letter of Credit remains outstanding, or
any amount is owing to any Lender or the Administrative Agent hereunder or under
any other Loan Document, the Borrower shall not, and (except with respect to
subsection 9.1) shall not permit any of its Subsidiaries to, directly or
indirectly:
9.1 Financial Covenants. (a) Consolidated Leverage Ratio.
Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower to exceed 3.5 to 1.0.
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower to be less than 3.5 to 1.0.
9.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its Subsidiaries,
as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or such Subsidiary;
62
(f) Liens in existence on the date hereof listed on Schedule
9.2, provided that no such Lien is spread to cover any additional property after
the Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by such Indebtedness
and (iii) the amount of Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, provided that (i) such Liens existed
at the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any property or
assets of such corporation after the time such corporation becomes a Subsidiary,
and (iii) the amount of Indebtedness secured thereby is not increased;
(i) Liens created pursuant to any Receivables Transaction
permitted pursuant to subsection 9.3(a); and
(j) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries) $100,000,000
in aggregate amount at any time.
9.3 Limitation on Indebtedness. Create, issue, incur, assume,
become liable in respect of or suffer to exist
(a) subject to Section 3.1(d), any Indebtedness pursuant to
any Receivables Transaction, except for Indebtedness pursuant to all Receivables
Transactions in an aggregate principal amount not exceeding 15% of Consolidated
Tangible Assets; or
(b) any Indebtedness of any of the Subsidiaries of the
Borrower other than (x) Indebtedness of any Receivables Subsidiary pursuant to
any Receivables Transaction permitted under subsection 9.3(a), (y) any
Indebtedness of any Subsidiary of the Borrower owing to the Borrower or to any
other Subsidiary of the Borrower and (z) any other Indebtedness of Subsidiaries
of the Borrower in an aggregate principal amount at any time outstanding not to
exceed 15% of Consolidated Tangible Assets.
9.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more wholly
owned Subsidiaries of the Borrower (provided that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation);
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(b) the Borrower or any wholly owned Subsidiary of the
Borrower may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any other
wholly owned Subsidiary, and, so long as no Default or Event of Default shall
have occurred and be continuing or would occur as a result thereof, the Borrower
or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to any
non-wholly owned Subsidiary of the Borrower for fair market value;
(c) any non-wholly owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any wholly owned Subsidiary of the
Borrower for fair market value or may sell, lease, transfer or otherwise dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to any
other non-wholly owned Subsidiary of the Borrower; and
(d) the Borrower or any Subsidiary of the Borrower may be
merged or consolidated with or into another Person; provided that the Borrower
or such Subsidiary shall be the continuing or surviving corporation and no
Default or Event of Default shall have occurred and be continuing or would occur
as a result thereof (and, in the case of any such transaction involving a
Subsidiary, such Subsidiary shall continue to be a Subsidiary or the Borrower
shall have received fair market value therefor as determined by the Board of
Directors of the Borrower); and provided further that the Borrower may not be
merged or consolidated with or into any Subsidiary.
Section 10. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any fee
or other amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(c) (i) The Borrower shall default in the observance or
performance of any covenant contained in subsections 8.4(b), 8.7(a) or in
Section 9; (ii) the Borrower shall default in the observance or performance of
any agreement contained in Section 12; or (iii) the Borrower shall default in
the observance or performance of any other agreement contained in this Agreement
(other than as provided above in this Section), and such default described in
this clause (iii) shall continue unremedied for a period of 30 days; or
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(d) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation, beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or Guarantee
Obligations in respect of which any default or other event or condition referred
to in this paragraph shall have occurred shall be equal to at least
$100,000,000; or
(e) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries shall generally not or shall
admit in writing its inability to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
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purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled
Entity shall incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or in excess of the amount recoverable by insurance) of $100,000,000
(net of any related tax benefit) or more, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A) shall
have acquired beneficial ownership of 30% or more of any outstanding class of
Capital Stock having ordinary voting power in the election of directors of the
Borrower (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇) or (B) shall obtain
the power (whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall not consist of a
majority of Continuing Directors; "Continuing Directors" shall mean the
directors of the Borrower on the Closing Date and each other director, if such
other director's nomination for election to the Board of Directors of the
Borrower is recommended by a majority of the then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. In the case of all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion
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thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrower
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder and
under the other Loan Documents shall have been paid in full (or in the event
that the acceleration that required the funding of such cash collateral account
is rescinded by the Lenders), the balance, if any, in such cash collateral
account shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto).
Section 11. THE AGENTS
11.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
11.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
11.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
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11.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
11.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
11.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the
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business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7 Indemnification. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Revolving Credit Commitment Percentages in effect on the date
on which indemnification is sought (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with such percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the payment
of the Loans and all other amounts payable hereunder.
11.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it and with respect to
any Letter of Credit issued or participated in by it, the Administrative Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
11.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative
69
Agent or any of the parties to this Agreement or any holders of the Loans. After
any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 11 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
11.10 The Arrangers, the Bookrunners and the Syndication
Agents. None of the Arrangers, the Bookrunners or the Syndication Agents shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Arrangers, the Bookrunners or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arrangers,
the Bookrunners or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
Section 12. GUARANTEE
12.1 Guarantee. (a) The Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) No payment or payments made by the Borrower or any other
Person or received or collected by the Administrative Agent or any Lender from
the Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Borrower hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(c) The Borrower agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent and such Lender in writing that such payment is made under this Section
for such purpose.
12.2 No Subrogation. Notwithstanding any payment or payments
made by the Borrower hereunder, or any set-off or application of funds of the
Borrower by the Administrative Agent or any Lender, the Borrower shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Foreign Subsidiary Borrowers or against any collateral
security or guarantee or right of offset held by the Administrative Agent or any
Lender for the payment of the Obligations, nor shall the Borrower seek or be
entitled to seek any contribution or reimbursement from the Foreign Subsidiary
Borrowers in respect of payments made by the Borrower hereunder, until all
amounts owing to the Administrative Agent and the Local Currency Lenders by the
Foreign Subsidiary Borrowers on account of the Obligations are paid in full and
the Commitments are terminated. If any amount shall be paid to the Borrower on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the Borrower in trust
for the Administrative Agent and
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the Lenders, segregated from other funds of the Borrower, and shall, forthwith
upon receipt by the Borrower, be turned over to the Administrative Agent in the
exact form received by the Borrower (duly indorsed by the Borrower to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Administrative Agent may
determine. The provisions of this paragraph shall continue to be effective after
the termination of this Agreement, the payment in full of the Obligations and
the termination of the Commitments.
12.3 Amendments, etc. with respect to the Obligations; Waiver
of Rights. The Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Borrower, and without notice to or
further assent by the Borrower, any demand for payment of any of the Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Obligations continued, and
the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the Borrower, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on the Foreign Subsidiary
Borrowers or any other guarantor, and any failure by the Administrative Agent or
any Lender to make any such demand or to collect any payments from a Foreign
Subsidiary Borrower or any such other guarantor or any release of a Foreign
Subsidiary Borrower or such other guarantor shall not relieve the Borrower of
its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Administrative Agent or any Lender against the Borrower. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
12.4 Guarantee Absolute and Unconditional. The Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Foreign Subsidiary Borrowers and the
Borrower, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Agreement. The Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Foreign Subsidiary Borrowers and the Borrower with respect to the Obligations.
This Section 12 shall be construed as a continuing, absolute and unconditional
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guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Foreign Subsidiary Borrowers against the
Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Foreign Subsidiary Borrowers or
the Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Foreign Subsidiary Borrowers for the
Obligations, or of the Borrower under this Section 12, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Borrower, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Foreign Subsidiary Borrowers or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Administrative Agent or any Lender to pursue
such other rights or remedies or to collect any payments from the Borrower or
any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the Foreign
Subsidiary Borrowers or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Borrower of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent or any Lender against the Borrower. This Section 12 shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Borrower and its successors and assigns, and shall inure to the
benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Borrower under this Agreement shall have been satisfied
by payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Foreign Subsidiary
Borrowers may be free from any Obligations.
12.5 Reinstatement. This Section 12 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
12.6 Payments. The Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the Administrative Agent
without set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
12.7 "Lenders". For all purposes of this Section 12, the term
"Lenders" shall be deemed to include Local Currency Lenders.
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Section 13. MISCELLANEOUS
13.1 Amendments and Waivers. (a) Except as provided in
paragraphs (b) and (c) of this subsection 13.1, neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate or amount of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender's
Multicurrency Commitment, Revolving Credit Commitment, Swingline Commitment or
L/C Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentages specified in the definitions, of Majority Lenders or
Majority Multicurrency Lenders, or consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents or release, subordinate or otherwise materially limit the
Borrower's liability with respect to the guarantee set forth in Section 12, in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 11 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a), (i) Schedule II may be amended to change administrative
information contained therein with the approval of the Majority Multicurrency
Lenders, upon execution and delivery by the Borrower and the Administrative
Agent of a written amendment providing for such amendment and (ii) additional
freely-convertible eurocurrencies may be added as Available Foreign Currencies,
upon execution and delivery by the Borrower, the Administrative Agent and the
Majority Multicurrency Lenders of an amendment providing for such addition.
(c) The Administrative Agent shall give prompt written notice
to each Lender of any amendment effected pursuant to subsection 13.1(b).
(d) Notwithstanding the provisions of this subsection 13.1,
any Local Currency Facility may be amended, supplemented or otherwise modified
in accordance with its
73
terms so long as after giving effect thereto either (i) such Local Currency
Facility ceases to be an "Local Currency Facility" and the Borrower so notifies
the Administrative Agent or (ii) the Local Currency Facility continues to meet
the requirements of a Local Currency Facility set forth herein.
13.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Best
Senior Vice President,
Finance & Administration
and Chief Financial Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
General Counsel's Office
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Loan & Agency Services Group
Agent: One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.6, 2.9, 2.14, 2.15, or 3.2 shall
not be effective until received.
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13.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
13.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, provided, that in connection with
any workout or restructuring, the Borrower shall pay the fees and disbursements
of (i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
and each of their affiliates and their respective officer, directors, employees,
agents and advisors (each, an "indemnified party") harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each indemnified
party harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
have no obligation hereunder to any indemnified party with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such indemnified party determined in a court
75
of competent jurisdiction in a final non-appealable judgment. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
13.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender, other than a Conduit Lender, may, in the
ordinary course of its commercial banking business and in accordance with
applicable law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to subsection
13.1(a). The Borrower agrees that if amounts outstanding under this Agreement
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
13.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 3.9, 3.10 and
3.11 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender, other than a Conduit Lender, may, in the
ordinary course of its commercial banking business and in accordance with
applicable law, at any time and from time to time assign to any Lender or any
Lender Affiliate of comparable credit-worthiness or, with the consent of the
Borrower (unless a Default or an Event of Default shall have occurred and be
continuing) and the Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank, financial institution, or other
entity (an "Assignee") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to
76
an Assignment and Acceptance, substantially in the form of Exhibit H, executed
by such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or a Lender Affiliate, by the Borrower and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided that, in the case of any such assignment to
an additional bank, financial institution or other entity, the sum of the
aggregate principal amount of the Loans and the aggregate amount of the unused
Revolving Credit Commitment being assigned shall be not less than $5,000,000
and, if such assignment is of less than all of the rights and obligations of the
assigning Lender, the sum of the aggregate principal amount of the Revolving
Credit Loans and the aggregate amount of the unused Revolving Credit Commitment
remaining with the assigning Lender shall be not less than $10,000,000 (or such
lesser amount as may be agreed to by the Borrower and the Administrative Agent).
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Each assignment by a Lender of any portion of its Revolving
Credit Commitment shall be accompanied by assignment by such Lender to the same
Assignee of the same percentage of such Lender's Multicurrency Commitment.
Notwithstanding the foregoing, any Conduit Lender may assign at any time to its
designating Lender hereunder without the consent of the Borrower or the
Administrative Agent any or all of the Loans it may have funded hereunder and
pursuant to its designation agreement and without regard to the limitations set
forth in the first sentence of this subsection 13.6(c).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
13.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or a Lender Affiliate, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $4,000, the
77
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 13.14, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
13.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
the Reimbursement Obligations owing to it (or any participation therein arising
pursuant to subsection 13.15) then due and owing, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
subsection 10(e), or otherwise), in a greater proportion than any such payment
to or collateral received by any other Lender (other than to the extent
expressly provided herein), if any, in respect of such other Lender's Loans or
the Reimbursement Obligations owing to it (or any participation therein arising
pursuant to subsection 13.15) then due and owing, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan or the Reimbursement
Obligations owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made
78
by such Lender, provided that the failure to give such notice shall not affect
the validity of such set-off and application.
13.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
13.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
13.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 13.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
79
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
13.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
13.14 Confidentiality. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a review of the books and
records of the Borrower or any of its Subsidiaries; provided that nothing herein
shall prevent any Lender from disclosing any such information (i) to the
Administrative Agent, the Issuing Lender or any other Lender, (ii) to any
Transferee which receives such information having been made aware of the
confidential nature thereof and having agreed to abide by the provisions of this
subsection 13.14, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, and to employees and officers of
its Affiliates who agree to be bound by the provisions of this subsection 13.14
and who have a need for such information in connection with this Agreement or
other transactions or proposed transactions with the Borrower, (iv) upon the
request or demand of any Governmental Authority having jurisdiction over such
Lender, (v) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(vi) subject to an agreement to comply with the provisions of this subsection,
to any actual or prospective counter-party (or its advisors) to any Hedge
Agreement, (vii) which has been publicly disclosed other than in breach of this
Agreement, or (viii) in connection with the exercise of any remedy hereunder.
13.15 Loan Conversion/Participations. (a)(i) On any Conversion
Date, to the extent not otherwise prohibited by a Requirement of Law or
otherwise, all Loans (other than CAF Advances) outstanding in any currency other
than Dollars ("Loans to be Converted") shall be converted into Revolving Credit
Loans denominated in Dollars (calculated on the basis of the relevant Exchange
Rates as of the Business Day immediately preceding the Conversion Date)
("Converted Loans") and (ii) on the Conversion Date (with respect to Loans
described in the foregoing clause (i)) (A) each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in Dollars a
participating interest in such Converted Loans in an amount equal to its
Conversion Sharing Percentage of the outstanding principal amount of the
Converted Loans
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and (B) to the extent necessary to cause the Committed Outstandings Percentage
of each Lender to equal its Revolving Credit Commitment Percentage (calculated
immediately prior to the termination or expiration of the Revolving Credit
Commitments), each Lender severally, unconditionally and irrevocably agrees that
it shall purchase or sell a participating interest in Revolving Credit Loans
then outstanding. Each Lender will immediately transfer to the Administrative
Agent, in immediately available funds, the amounts of its participation(s), and
the proceeds of such participation(s) shall be distributed by the Administrative
Agent to each Lender from which a participating interest is being purchased in
the amount(s) provided for in the preceding sentence. All Converted Loans shall
bear interest at the rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into Dollars in the manner contemplated by paragraph (a) of this
subsection 13.15, (i) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase a participating
interest in such Loans to be Converted, as the case may be, in an amount equal
to its Conversion Sharing Percentage of such Loans to be Converted, and (ii)
each Lender shall purchase or sell participating interests as provided in
paragraph (a)(ii)(B) of this subsection 13.15. Each Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
(c) To the extent any Non-Excluded Taxes are required to be
withheld from any amounts payable by a Lender to another Lender in connection
with its participating interest in any Converted Loan, the Borrower shall be
required to pay increased amounts to the Lender receiving such payments to the
same extent they would be required under subsection 3.10 if the Borrower were
making payments directly to such Lender.
(d) Any time after the actions contemplated by paragraph (a)
or (b) of this subsection 13.15 have been taken, upon the notice of any Lender
to the Borrower the following shall occur: (i) the Borrower (through the
guarantee contained in Section 11) shall automatically be deemed to have assumed
the Local Currency Loans which are Converted Loans in which such Lender holds a
participation, and (ii) such Local Currency Loans shall be assigned by the
relevant Lender holding such Local Currency Loans or obligations to the Lender
who gave the notice requesting such assumption by the Borrower.
13.16 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of
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this Agreement (the "Agreement Currency"), be discharged only to the extent that
on the Business Day following receipt by such Lender of any sum adjudged to be
so due in the Judgment Currency such Lender may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency;
if the amount of Agreement Currency so purchased is less than the sum originally
due to such Lender in the Agreement Currency, the Borrower agrees
notwithstanding any such judgment to indemnify such Lender against such loss,
and if the amount of the Agreement Currency so purchased exceeds the sum
originally due to any Lender, such Lender agrees to remit to the Borrower such
excess.
13.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: _________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________________
Name:
Title:
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