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Sample Business ContractsHome: Sample Business Contracts:
Execution Copy
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement"), dated as
of April 30, 2003, is among DIEBOLD, INCORPORATED, an Ohio corporation (the
"Company"), the SUBSIDIARY BORROWERS (as hereinafter defined) from time to time
parties hereto (together with the Company, the "Borrowers"), the lenders from
time to time parties hereto (the "Lenders"), and BANK ONE, NA, successor by
merger to Bank One, Michigan, a national banking association, as Agent.
RECITALS
A. The Borrowers, the lenders party thereto and Bank One, NA, as
agent for such lenders, executed a Loan Agreement dated as of December 1, 1999,
as amended (the "Existing Loan Agreement").
B. The Borrowers have requested that the Lenders, including each
lender becoming a lender on the date hereof, and the Agent amend and restate the
Existing Loan Agreement as herein provided, and the Lenders and the Agent are
willing to amend and restate the Existing Loan Agreement on the terms and
conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the Voting Stock of
any Person.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans or Facility
Letters of Credit of the same Type and, in the case of Eurocurrency Loans, in
the same Agreed Currency and for the same Interest Period, and further, in the
case of Eurodollar Loans, for the same Interest Period, made by the Lenders on
the same Borrowing Date (or converted or continued by the Lenders on the same
date of conversion or continuation).
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of Voting Stock of the controlled Person or possesses,
26
<PAGE>
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of
the Lenders pursuant to Article XI, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article XI.
"Aggregate Commitments" means the aggregate amount, stated in U.S.
Dollars, of the Commitments of all Lenders.
"Aggregate Euro Revolving Credit Commitments" means the aggregate
amount, stated in Euro, of the Euro Revolving Credit Commitments of all of the
Euro Revolving Credit Lenders.
"Aggregate Euro Revolving Credit Outstandings" means as at any date of
determination with respect to any Euro Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's Euro Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the Euro Facility
Letter of Credit Obligations and Euro Swing Loans on such date, both stated in
Euro based on the Euro Equivalent Amount.
"Aggregate Revolving Credit Commitments" means, on any date of
determination, the U.S. Dollar Equivalent on such date of the aggregate amount
of the Revolving Credit Commitments of all of the Revolving Credit Lenders.
"Aggregate Euro Term Loan Commitments" means the aggregate amount,
stated in Euros, of Euro Term Loan Commitments of all the Euro Term Loan
Lenders, as reduced from time to time pursuant to principal payments on the Euro
Term Loans.
"Aggregate Euro Term Loan Outstandings" means as at any date of
determination with respect to any Lender, the sum of the aggregate unpaid
principal amount, stated in Euros based on the Euro Equivalent Amount, of such
Lender's portion of the Euro Term Loans on such date.
"Aggregate Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the sum of the U. S.
Dollar Equivalent on such date of the aggregate unpaid principal amount of such
Lender's Revolving Credit Loans on such date and the U. S. Dollar Equivalent on
such date of the amount of such Lender's Pro Rata Share of the Facility Letter
of Credit Obligations and Swing Loans on such date.
"Aggregate Term Loan Commitments" means the aggregate amount, stated in
U.S. Dollars, of Term Loan Commitments of all the Term Loan Lenders, as reduced
from time to time pursuant to principal payments on the Term Loans.
"Aggregate Term Loan Outstandings" means as at any date of
determination with respect to any Lender, the sum of the aggregate unpaid
principal amount, stated in U.S. Dollars, of such Lender's portion of the Term
Loans on such date.
"Aggregate Total Outstandings" means as at any date of determination
with respect to any Lender, the U.S. Dollar Equivalent of an amount equal to (a)
the Aggregate Revolving Credit Outstandings of such Lender on such date or (b)
the Aggregate Term Loan Outstandings of such Lender on such date, as the case
may be.
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"Aggregate U.S. Revolving Credit Commitments" means the aggregate
amount in U.S. Dollars of the U.S. Revolving Credit Commitments of all of the
Revolving Credit Lenders.
"Aggregate U.S. Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's U.S. Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the U.S. Facility
Letter of Credit Obligations and U.S. Swing Loans on such date, both stated in
U.S. Dollars.
"Aggregate U.S. Term Loan Commitments" means the aggregate amount,
stated in U.S. Dollars, of U.S. Term Loan Commitments of all the U.S. Term Loan
Lenders, as reduced from time to time pursuant to principal payments on the U.S.
Term Loans.
"Aggregate U.S. Term Loan Outstandings" means as at any date of
determination with respect to any Lender, the sum of the aggregate unpaid
principal amount, stated in U.S. Dollars, of such Lender's portion of the U.S.
Term Loans on such date.
"Agreed Currencies" means (i) Dollars, (ii) so long as it remains an
Eligible Currency, the Euro, and (iii) any other Eligible Currency which the
Borrowers request the Agent to include as an Agreed Currency hereunder and which
is acceptable to all of the Euro Lenders and the Agent.
"Agreement" means this loan agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect on the Effective Date in the United States, applied in a
manner consistent with the audited consolidated financial statements of the
Company and its Subsidiaries for the fiscal year ending December 31, 2002;
provided, however, that, if generally accepted accounting principles in the
United States of America shall require the Company to adopt other principles,
then the financial statements required to be delivered hereunder may be prepared
on the basis of such other principles but when delivered shall also be
accompanied by a reconciliation, reasonably satisfactory in scope and detail to
the Agent, to permit the review of such financial statements as if they were
prepared in accordance with Agreement Accounting Principles.
"Agreement Currency" is defined in Section 16.6.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day or (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means the amounts set forth in the Pricing Schedule
on Exhibit A hereto.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment" is defined in Section 13.3.1.
<PAGE>
"Authorized Officer" means, with respect to any Borrower, any of the
president, the chief executive officer, any Designated Financial Officer or the
secretary of the Company or any other Person designated by any of the foregoing
in writing to the Agent from time to time to act on behalf of any Borrower (or,
if so designated, a specific Borrower) which designation has not been rescinded
in writing, in each case acting singly, provided that two Authorized Officers
shall be required to modify the wiring instructions for any Advance.
"Available Foreign Currencies" means the Agreed Currencies other than
Dollars.
"Bank One" means Bank One, NA, a national banking association.
"Borrowers" is defined in the preamble hereto.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.3, 2.7, 2.15 or 2.16 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to the issuance of any Facility
Letter of Credit, the date the applicable Issuer issues such Facility Letter of
Credit.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, London and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in Dollars and the other Agreed Currencies are carried on in the London
interbank market (and, if the Advances which are the subject of such borrowing,
payment or rate selection are denominated in Euro, a day upon which such
clearing system as is determined by the Agent to be suitable for clearing or
settlement of the Euro is open for business), and (ii) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally are open in
Chicago, London and New York for the conduct of substantially all of their
commercial lending activities.
"Capital Stock" means (i) in the case of any corporation, all capital
stock and any securities exchangeable for or convertible into capital stock and
any warrants, rights or other options to purchase or otherwise acquire capital
stock or such securities or any other form of equity securities, (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalents" means (i) securities issued directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) Dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender or
(y) any bank whose short-term commercial paper rating from S&P is at least
investment grade or the equivalent thereof (any such bank, an "Approved
Lender"), (iii) commercial paper issued by any Lender or Approved Lender or by
the parent
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company of any Lender or Approved Lender and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least investment grade or the equivalent thereof, (iv)
investment grade bonds and preferred stock of investment grade companies,
including but not limited to municipal bonds, corporate bonds, treasury bonds,
etc., (v) foreign Investments denominated in an Eligible Currency that are of
similar type of, and that have a rating comparable to, any of the Investments
referred to in the preceding clauses (i) through (iv) above, (vi) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (v) above and (vii)
other securities and financial instruments which offer a security comparable to
those listed above.
"Change of Control" means (i) a majority of the members of the Board of
Directors of Company shall not be Continuing Directors; or (ii) any Person
including a "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) which includes such Person, shall
purchase or otherwise acquire, directly or indirectly, beneficial ownership of
Voting Stock of Company and, as a result of such purchase or acquisition, any
such Person (together with its Affiliates), shall directly or indirectly
beneficially own in the aggregate Voting Stock representing more than 30% of the
combined voting power of Company's Voting Stock.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, such Lender's U.S. Revolving
Credit Commitment, Euro Revolving Credit Commitment, U.S. Term Loan Commitment
and Euro Term Loan Commitment, and "Commitments" means the aggregate of all of
the Lenders' Commitments.
"Company" is defined in the preamble hereto.
"Compliance Certificate" is defined in Section 6.1(iii).
"Condemnation" is defined in Section 7.8.
"Confidential Information" is defined in Section 10.11.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guaranties, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract. The amount of any Contingent Obligation shall
be equal to the amount of the obligation that is so guarantied or supported that
is actually outstanding or otherwise due and payable from time to time, if a
fixed and determinable amount or if there is no fixed or determinable amount,
either (x) if a maximum amount is guaranteed, the maximum amount or (y) if there
is no maximum amount the amount of the obligation that is so guarantied or
supported.
"Continuing Directors" means individuals who at the beginning of any
period of two consecutive calendar years constituted the board of directors of
the Company, together with any new directors whose election by such board of
directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of such board of directors then still in office who
either were members of such board of directors at the beginning of such period
or whose election or nomination for election was previously so approved.
<PAGE>
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Sections 414(b) or (c) of the Code.
"Conversion/Continuation Notice" is defined in Section 2.7.1.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (a) on any Borrowing Date
fails to make available to the Agent such Lender's Loans required to be made to
a Borrower on such Borrowing Date or (b) shall not have made a payment to the
Issuer pursuant to Section 2.15.5 or the Agent pursuant to Section 2.16. Once a
Lender becomes a Defaulting Lender, such Lender shall continue as a Defaulting
Lender until such time as such Defaulting Lender makes available to the Agent
the amount of such Defaulting Lender's Loans and/or to an Issuer such payments
requested by an Issuer together with all other amounts required to be paid to
the Agent and/or the Issuers pursuant to this Agreement.
"Designated Financial Officer" means, with respect to any Borrower, its
chief financial officer, director of treasury services, treasurer, assistant
treasurer, or similar position.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Dollars", "U.S. Dollars" and "$" means dollars in lawful currency of
the United States of America.
"Dollar Equivalent Amount" of any currency at any date shall mean (i)
the amount of such currency if such currency is in Dollars or (ii) the
Equivalent Amount of Dollars if such currency is any currency other than
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such currency on the London market at
11:00 a.m., London time, on such date or as most recently determined by the
Agent.
"Domestic Subsidiary" means each present and future Subsidiary of the
Company which is not a Foreign Subsidiary.
"Domestic Subsidiary Borrower" means each Domestic Subsidiary listed as
a Domestic Subsidiary Borrower in Schedule 1.1(b) as amended from time to time
in accordance with Section 8.2.2.
"Domestic Subsidiary Opinion" means with respect to any Domestic
Subsidiary Borrower, a legal opinion of counsel to such Domestic Subsidiary
Borrower addressed to the Agent and the Lenders concluding that such Domestic
Subsidiary Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on Exhibit B, with such assumptions,
qualifications and deviations therefrom as the Agent shall approve.
"EBIT" means, for any period, the sum of (a) the consolidated net
income (or loss) of the Company and its Subsidiaries for such period determined
in conformity with Agreement Accounting Principles, plus (b) to the extent
deducted in determining such net income, income taxes, and Interest Expense, and
any extraordinary and non-recurring losses and non-cash charges and related tax
effects in accordance with
<PAGE>
Agreement Accounting Principles, minus (c) to the extent included in determining
such net income, each of the following, without duplication: (i) the income of
any Person (other than a Wholly Owned Subsidiary of the Company) in which any
Person other than the Company or any of its Subsidiaries has a joint interest or
a partnership interest or other ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
of its Subsidiaries by such Person during such period, (ii) the income of any
Person accrued prior to the date it becomes a Subsidiary of the Company or is
merged into or consolidated with the Company or any of its Subsidiaries or that
Person's assets are acquired by the Company or any of its Subsidiaries, (iii)
gains from the sale, exchange, transfer or other disposition of property or
assets not in the ordinary course of business of the Company and its
Subsidiaries, and related tax effects in accordance with Agreement Accounting
Principles, (iv) any other extraordinary or non-recurring gains or other income
not from the continuing operations of the Company or its Subsidiaries, and
related tax effects in accordance with Agreement Accounting Principles and (v)
the income of any Subsidiary of the Company (other than Subsidiaries which are
not material in the aggregate as agreed upon between the Company and the Agent)
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
"Effective Date" means the date on which the conditions precedent set
forth in Sections 4.1 and 4.2 are satisfied.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which a Dollar Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, (x) currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are
introduced, (y) such currency is, in the determination of the Agent, no longer
readily available or freely traded or (z) in the determination of the Agent, a
Dollar Equivalent Amount of such currency is not readily calculable, the Agent
shall promptly notify the Lenders and the Company, and such currency shall no
longer be an Agreed Currency until such time as all of the Lenders agree to
reinstate such currency as an Agreed Currency and promptly, but in any event
within five Business Days of receipt of such notice from the Agent, the Borrower
shall repay all Loans in such affected currency or convert such Loans into Loans
in Dollars or another Agreed Currency, subject to the other terms set forth in
Article II.
"Environmental Laws" means, with respect to the Company or any of its
Subsidiaries, any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (a) the protection of
the environment, (b) the effect of the environment on human health, (c)
emissions, discharges or releases of Hazardous Substances into surface water,
ground water or land, or (d) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances or
the clean-up or other remediation thereof, in each case, applicable to the
Company's or any of its Subsidiary's operations or Property.
"Equivalent Amount" of any currency with respect to any amount of any
other currency at any date means the equivalent in such currency of such amount
of such other currency, calculated on the basis of the arithmetical mean of the
buy and sell spot rates of exchange of the Agent for such currency at 11:00
a.m., London time, on the date on or as of which such amount is to be
determined.
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of Economic and Monetary
Union.
"Euro Equivalent Amount" of any currency at any date shall mean (i) the
amount of such currency if such currency is in Euros or (ii) the Equivalent
Amount of Euros if such currency is any currency other than Euros, calculated on
the basis of the arithmetical mean of the buy and sell spot rates of exchange of
the Agent for such currency on the London market at 11:00 a.m., London time, on
such date or as most recently determined in good faith by the Agent.
"Euro Facility Letter of Credit" means any Letter of Credit for the
account of a Foreign Subsidiary Borrower.
"Euro Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to Euro Facility Letters of Credit.
"Euro Lender" means any Euro Revolving Credit Lender or Euro Term Loan
Lender.
"Euro Loan" means any Euro Revolving Credit Loan or Euro Term Loan.
"Euro Revolving Credit Commitment" means, as to any Lender at any time,
its obligation to make Revolving Credit Loans to the Foreign Subsidiary
Borrowers under Section 2.1.2 in an aggregate Euro Equivalent Amount not to
exceed at any time outstanding the Euro amount set forth opposite such Lender's
name in Schedule 1.1(a) under the heading "Euro Revolving Credit Commitment" or
as otherwise established pursuant to Section 13.3, as such amount may be reduced
from time to time pursuant to Section 2.4, 13.3 and the other applicable
provisions hereof.
"Euro Revolving Credit Lender" means any Lender which has a Euro
Revolving Credit Commitment.
"Euro Revolving Credit Loans" means Revolving Credit Loans made to the
Foreign Subsidiary Borrowers under Section 2.1.2.
"Euro Swing Loan" is defined in Section 2.16.
"Euro Term Loan" means, with respect to a Lender, such Lender's portion
of the term loan made in Available Foreign Currencies pursuant to Section 2.1.4.
"Euro Term Loan Commitment" means as to any Lender at any time, its
obligation to make the Euro Term Loan to the Company in an aggregate Euro
Equivalent Amount not to exceed at any time outstanding the aggregate
outstanding principal amount of its respective Euro Revolving Credit Loans of
such Lender outstanding on the Facility Termination Date or as otherwise
established pursuant to Section 13.3, as such amount may be reduced from time to
time pursuant to Section 13.3 and the other applicable provisions hereof.
"Euro Term Loan Lenders" means those Lenders which have a Euro Term
Loan Commitment or, if such Commitments have been terminated, have an
outstanding Euro Term Loan.
<PAGE>
"Eurocurrency Advance" means a Multicurrency Advance which bears
interest at the Eurocurrency Rate.
"Eurocurrency Loan" means a Multicurrency Loan which bears interest at
the Eurocurrency Rate.
"Eurocurrency Rate" means, with respect to a Eurocurrency Loan for the
relevant Interest Period, the sum of (a) the Eurocurrency Reference Rate
applicable to such Interest Period, plus (b) the amount of all reserves, costs
or similar requirements relating to the funding of the relevant Available
Foreign Currency, as determined by the Agent, plus (c) the Applicable Margin.
"Eurocurrency Reference Rate" means, with respect to each Interest
Period for a Multicurrency Loan:
(a) the rate per annum quoted at or about 11:00 a.m. (London time)
on the Quotation Date for such period on that page of the
Bloombergs' or Reuters' Screen, as determined by the Agent,
which displays British Bankers Association Interest Settlement
Rates for deposits in the relevant Available Foreign Currency
for such period or, if such page or service shall cease to be
available, such other page or such other service (as the case
may be) for the purpose of displaying British Bankers
Association Interest Settlement Rates for such currency as the
Agent, in its discretion, shall select.
(b) If no such rate is displayed for the relevant currency and the
relevant period and there is no Available Foreign Currency
alternative service on which two or more such quotations for
the Available Foreign Currency are displayed, "Eurocurrency
Reference Rate" will be the rate at which deposits in the
Available Foreign Currency of that amount are offered by the
Agent for that period to prime banks in the London inter bank
market at or about 11:00 a.m. (London time) on the Quotation
Date for such period.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the rate determined by the Agent to be the rate at
which the Agent offers to place deposits in Dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of Bank One's relevant Eurodollar Loan and having a maturity
approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Exchange Rate" means with respect to any non-U.S. Dollar currency on
any date, the rate at which such currency may be exchanged into U.S. Dollars, as
set forth on such date on the relevant Bloomberg currency page at or about 11:00
a.m., Chicago time. In the event that such rate does not appear on any Bloomberg
currency page, the "Exchange Rate" with respect to such non-U.S. Dollar currency
shall be determined by reference to such other publicly available service for
displaying
<PAGE>
exchange rates as may be agreed upon by the Agent and the Company or, in the
absence of such agreement, such "Exchange Rate" shall instead be the Agent's
spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non-U.S. Dollar currency are then being
conducted, at or about 10:00 a.m., local time, on such date for the purchase of
U.S. Dollars with such non-U.S. Dollar currency, for delivery three Business
Days later; provided, that if at the time of any such determination, no such
spot rate can reasonably be quoted, the Agent may use any reasonable method as
it deems applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Facility Letter of Credit" means a Letter of Credit issued by an
Issuer pursuant to Section 2.15.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of a
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and, without duplication, (b) the aggregate
undrawn face amount of the outstanding Facility Letters of Credit.
"Facility Termination Date" means the earlier to occur of (a) April 28,
2004 or (b) the date on which the Revolving Credit Commitments are terminated
pursuant to Article VIII.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion or, when used in connection with any Advance denominated in any
Eligible Currency, "Federal Funds Effective Rate" means the correlative rate of
interest with respect to such Eligible Currency as determined by the Agent in
its sole discretion for such day.
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"Fixed Rate" means the Eurodollar Rate or the Eurocurrency Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum (based on a year
of 365 or 366 days as appropriate) equal to the sum of (a) the Applicable Margin
plus (b) the Alternate Base Rate for such day, in each case changing when and as
the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means each Subsidiary organized under the laws of
a jurisdiction outside of the United States.
<PAGE>
"Foreign Subsidiary Borrower" means each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in
accordance with Section 8.2.2.
"Foreign Subsidiary Opinion" means with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Agent and the Lenders concluding that such Foreign
Subsidiary Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on Exhibit C, with such assumptions,
qualifications and deviations therefrom as the Agent shall approve.
"Governmental Authority" means 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.
"Guarantor" means (a) with respect to the Obligations of the Subsidiary
Borrowers, the Company and each present and future Domestic Subsidiary of the
Company required to execute a Guaranty pursuant to Section 2.18 and any other
Person executing a Guaranty at any time, and (b) with respect to the Company,
each present and future Domestic Subsidiary of the Company required to execute a
Guaranty pursuant to Section 2.18 and any other Person executing a Guaranty at
any time.
"Guaranty" means, with respect to the Company, the guarantee contained
in Article IX and, with respect to any other Guarantor, each guaranty agreement
in substantially the form of Exhibit D hereto or, in the case of Foreign
Subsidiaries that are Guarantors, such other form agreed to by the Agent and the
Company duly executed and delivered by each such Guarantor to the Agent,
including any amendment, modification, renewal or replacement of such guaranty
agreement.
"Hazardous Substances" means any material or substance: (1) which is or
becomes defined as a hazardous substance, pollutant, or contaminant, pursuant to
the Comprehensive Environmental Response Compensation and Liability Act
("CERCLA") (42 USC Section 9601 et. seq.) as amended and regulations promulgated
under it; (2) containing gasoline, oil, diesel fuel or other petroleum products;
(3) which is or becomes defined as hazardous waste pursuant to the Resource
Conservation and Recovery Act ("RCRA") (42 USC Section 6901 et. seq.) as amended
and regulations promulgated under it; (4) containing polychlorinated biphenyls
(PCBs); (5) containing asbestos; (6) which is radioactive; (7) the presence of
which requires investigation or remediation under any Environmental Law; (8)
which is or becomes defined or identified as a hazardous waste, hazardous
substance, hazardous or toxic chemical, pollutant, contaminant, or biologically
Hazardous Substance under any Environmental Law.
"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money or similar obligations, (b) obligations
representing the deferred purchase price of Property or services (other than
accounts payable and/or accrued expenses and commercial Letters of Credit with
respect to the foregoing, in each case arising in the ordinary course of such
Person's business payable in accordance with customary practices), (c)
obligations, whether or not assumed, secured by Liens on property now or
hereafter owned or acquired by such Person, (d) obligations which are evidenced
by notes, acceptances, or other instruments (other than Financial Contracts), to
the extent of the amounts actually borrowed, due, payable or drawn, as the case
may be, (e) Capitalized Lease Obligations, (f) all obligations in respect of
Letters of Credit (other than commercial Letters of Credit referenced in clause
(b) above), whether drawn or undrawn, contingent or otherwise, (g) any other
obligation for borrowed money or other financial accommodation which in
accordance with Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person, (h) Off-Balance Sheet
Liabilities, and (i) Contingent Obligations with respect to any of the
foregoing.
<PAGE>
"Interest Coverage Ratio" means, as of the end of any fiscal quarter,
the ratio of (a) EBIT to (b) Interest Expense, in each case calculated for the
four consecutive fiscal quarters then ending, on a consolidated basis for the
Company and its Subsidiaries in accordance with Agreement Accounting Principles.
"Interest Expense" means, with respect to any period, the aggregate of
all interest expense reported by the Company and its Subsidiaries in accordance
with Agreement Accounting Principles during such period, net of any cash
interest income received by the Company and its Subsidiaries during such period
from Investments. As used in this definition, the term "interest" shall include,
without limitation, all interest, fees and costs payable with respect to the
obligations under this Agreement (other than fees and costs which may be
capitalized as transaction costs in accordance with Agreement Accounting
Principles), any discount in respect of sales of accounts receivable and/or
related contract rights and the interest portion of Capitalized Lease payments
during such period, all as determined in accordance with Agreement Accounting
Principles; provided, however, that non-cash interest expense in an amount not
to exceed $15,000,000 incurred in the fiscal quarter ended December 31, 2002 and
arising from a settlement with the IRS regarding the deductibility of interest
on debt related to corporate owned life insurance shall be excluded from
Interest Expense.
"Interest Period" means with respect to any Fixed Rate Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Fixed Rate
Loan and ending one, two, three, or six months thereafter, or such
other period as agreed upon by the Lenders making such Fixed Rate Loan,
as selected by the relevant Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto;
and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Fixed Rate Loan
and ending one, two, three or six months thereafter, or such other
period as agreed upon by the Lenders, as selected by the relevant
Borrower by irrevocable notice to the 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:
(i) if any Interest Period pertaining to a Fixed
Rate Loan would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period applicable to a Fixed
Rate Loan that would otherwise extend beyond (A) with respect
to any Term Loan, the Maturity Date, shall end on the Maturity
Date or (B) with respect to any other Loan, the Facility
Termination Date, may be elected but shall end on the Facility
Termination Date (and such Loan shall be due and payable on
the Facility Termination Date and any amounts due under
Section 3.4 shall be payable) unless the Facility Termination
Date is extended on or before the last day of such Interest
Period to a date beyond the end of such Interest Period; and
<PAGE>
(iii) any Interest Period pertaining to a Fixed
Rate Loan 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.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable and/or accrued expenses arising in the ordinary course of business
payable in accordance with customary practices and loans to employees in the
ordinary course of business) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person
(other than Financial Contracts).
"Issuers" or "Issuer" means (i) Bank One, and (ii) any Lending
Installation of Bank One as Bank One may determine to be the issuer for any
Facility Letter of Credit.
"Joinder Agreement" means the Joinder Agreement to be entered into by
each Subsidiary Borrower subsequent to the date hereof pursuant to Section
8.2.2, substantially in the form of Exhibit E hereto.
"Judgment Currency" is defined in Section 16.6.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement or otherwise party hereto as a Lender from time to time, and
their respective successors and, to the extent permitted by Section 13.3,
assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or Affiliate of such Lender or the Agent, as the
case may be.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.15.7.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, fixed or floating charge, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's Revolving Credit
Loans and portion of the Term Loans, and, with respect to the Swing Lender,
Swing Loans.
"Loan Documents" means this Agreement, the Notes, any Rate Hedging
Agreements with any Lenders or their Affiliates and the other agreements,
certificates and other documents contemplated hereby or executed or delivered
pursuant hereto by any Borrower or any Guarantor at any time with or in favor of
the Agent or any Lender.
<PAGE>
"London Banking Day" means any day on which banks in London are open
for substantially all of their banking business, including dealings in foreign
currency and exchange.
"Margin Stock" means "margin stock" as defined in Regulations U or X or
"marginable OTC stock" or "foreign margin stock" within the meaning of
Regulation T.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers and Guarantors, taken as a whole, to pay the Obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Maturity Date" means the earlier to occur of (a) the date two years
after the Facility Termination Date or (b) the date on which the maturity of the
Term Loans are accelerated pursuant to Article VIII.
"Moody's" means Moody's Investors Service, Inc.
"Multicurrency Advance" means a borrowing hereunder (or continuation or
a conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type, in the same Available Foreign Currency and for the
same Interest Period.
"Multicurrency Loans" means, Euro Loans and any Swing Loans denominated
in currencies other than U.S. Dollars.
"Multiemployer Plan" means a plan defined in Section 4001(a)(3) of
ERISA to which the Company or any member of the Controlled Group has an
obligation to contribute.
"Net Worth" means, as of any date, the amount of any capital stock,
paid in capital and similar equity accounts plus (or minus in the case of a
deficit) the capital surplus and retained earnings of the Company and its
Subsidiaries on a consolidated basis, all as determined in accordance with
Agreement Accounting Principles.
"Non-Confidential Information" is defined in Section 10.11.
"Non-Excluded Taxes" is defined in Section 3.6.1.
"Notes" means the collective reference to the Revolving Credit Notes
and the Term Notes.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means collectively, the unpaid principal of and interest
on the Loans, all obligations and liabilities pursuant to the Facility Letters
of Credit, all Rate Hedging Obligations and all other obligations and
liabilities of each Borrower and each Guarantor to the Agent or the Lenders
(including Affiliates of such Lenders in the case of Rate Hedging obligations)
under this Agreement and the other Loan Documents (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 any Borrower or any Guarantor, as the case may be,
<PAGE>
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 other Loan Documents 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 reasonable fees
and disbursements of counsel to the Agent or to the Lenders that are required to
be paid by any Borrower or any Guarantor pursuant to the terms of this Agreement
or any other Loan Document).
"Obligor" means any Person which is obligated to make payments for the
provision of goods and services pursuant to a Contract.
"Off-Balance Sheet Liability of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, and including without limitation
the outstanding amount sold or financed under any Permitted Securitization
Transaction.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last Business Day of each March, June,
September and December occurring after the Effective Date, commencing March 31,
2003.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Securitization Transaction" is defined in Section 6.10(iii).
"Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, company or
other entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Company or any member of the Controlled Group has any
obligation to contribute to on or after the Effective Date.
"Prime Rate" means the per annum rate announced or established by the
Agent from time to time as its "prime rate" (it being acknowledged that such
announced rate may not necessarily be the lowest rate charged by the Agent to
any of its customers) or the corporate base rate of interest announced or
established by any Affiliate of the Agent or, when used in connection with any
Advance denominated in any Eligible Currency, "Prime Rate" means the correlative
floating rate of interest customarily applicable to similar extensions of credit
to corporate borrowers denominated in such currency in the country of issue, as
determined by the Agent, which Prime Rate shall change simultaneously with any
change in such announced or established rates.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment (calculated using the U.S. Dollar Equivalent thereof) to the
Aggregate Commitment (calculated using the U.S. Dollar Equivalent thereof),
provided that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility
Letters of Credit, U.S. Swing Loans and facility fees with respect to the U.S.
Revolving Credit Commitment, Pro Rata
<PAGE>
Share means, for each Lender, the ratio such Lender's U.S. Revolving Credit
Commitment bears to the Aggregate U.S. Revolving Credit Commitments, (b) with
respect to Euro Revolving Credit Loans, Euro Facility Letters of Credit, Euro
Swing Loans and facility fees with respect to the Euro Revolving Credit
Commitment, Pro Rata Share means, for each Lender, the ratio such Lender's Euro
Revolving Credit Commitment bears to the Aggregate Euro Revolving Credit
Commitments, (c) with respect to the U.S. Term Loan, Pro Rata Share means, for
each Lender, the ratio such Lender's U.S. Term Loan Commitment bears to the
Aggregate U.S. Term Loan Commitment, and (d) with respect to the Euro Term Loan,
Pro Rata Share means, for each Lender, the ratio such Lender's Euro Term Loan
Commitment bears to the Aggregate Euro Term Loan Commitment. If at any time the
Commitments have been terminated, the amount of any Commitment for the purposes
of this definition of "Pro Rata Share" only shall be deemed equal to the amount
of such Commitment immediately prior to its termination.
"Property" of a Person means any and all property, whether real,
personal, movable, immovable, tangible, intangible, or mixed, of such Person, or
other assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 13.3.1.
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate is to be determined hereunder, means the date on which quotations
would ordinarily be given by prime Lenders in the London inter-bank market for
deposits in the Available Foreign Currency in relation to which such rate is to
be determined for delivery on the first day of that period, provided that, if,
for such period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
<PAGE>
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Reimbursement Obligations" means, at any time, the aggregate of the
obligations of the Borrowers to the Lenders and the Issuers in respect of all
unreimbursed payments or disbursements made by the Issuers and the Lenders under
or in respect of the Facility Letters of Credit.
"Release" means any release, spill, leak, discharge or leaching of any
Hazardous Substances into the environment in violation of any Environmental Law.
"Remedial Action" means an action to address a Release or other
violation of Environmental Laws required by any Environmental Law.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section with respect to a Plan
subject to Title IV of ERISA, excluding, however, such events as to which the
PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with Section 4043(a) of
ERISA or of the minimum funding standard under Section 412(d) of the Code.
"Required Euro Revolving Credit Lenders" means (a) at any time prior to
the termination of the Euro Revolving Credit Commitments, Euro Revolving Credit
Lenders holding not less than 51% of the aggregate Euro Revolving Credit
Commitments of all Euro Revolving Credit Lenders and (b) at any time after the
termination of the Euro Revolving Credit Commitments, Euro Revolving Credit
Lenders whose aggregate Euro Revolving Credit Loans and Pro Rata Shares of Euro
Facility Letters of Credit aggregate at least 51% date of the Aggregate Euro
Revolving Credit Loans of all Euro Revolving Credit Lenders and all Euro
Facility Letters of Credit.
"Required Lenders" means (a) at any time prior to the termination of
the Commitments, Lenders holding not less than 51% of the U. S. Dollar
Equivalent of the aggregate Commitments of all Lenders; and (b) at any time
after the termination of the Commitments, Lenders whose Aggregate Total
Outstandings aggregate at least 51% of the Aggregate Total Outstandings of all
Lenders.
"Required U.S. Revolving Credit Lenders" means (a) at any time prior to
the termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders holding not less than 51% of the aggregate U.S. Revolving Credit
Commitments of all U.S. Revolving Credit Lenders and (b) at any time after the
termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders whose aggregate U.S. Revolving Credit Loans and Pro Rata Shares of U.S.
Facility Letters of Credit aggregate at least 51% date of the Aggregate U.S.
Revolving Credit Loans of all U.S. Revolving Credit Lenders and all U.S.
Facility Letters of Credit.
"Required Euro Term Loan Lenders" means Euro Term Loan Lenders holding
not less than 51% of the aggregate amount of the Euro Term Loan made by all Euro
Term Loan Lenders.
"Required U.S. Term Loan Lenders" means U.S. Term Loan Lenders holding
not less than 51% of the aggregate amount of the U.S. Term Loan made by all U.S.
Term Loan Lenders.
<PAGE>
"Requirement of Law" means 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.
"Reserve Requirement" means, with respect to an Interest Period for
Eurodollar Loans or Eurocurrency Loans, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves),
assessments or similar requirements under any regulations of the Board of
Governors of the Federal Reserve System 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).
"Revolving Credit Advance" means a borrowing hereunder (or continuation
or conversion thereof) consisting of the several Revolving Credit Loans made on
the same Borrowing Date (or date of conversion or continuation) by the Lenders
to a Borrower of the same Type and in the case of Fixed Rate Advances, for the
same Interest Period.
"Revolving Credit Commitments" means the Euro Revolving Credit
Commitments and the U.S. Revolving Credit Commitments.
"Revolving Credit Committed Percentage" means as to any Lender at any
time, the percentage which the U.S. Dollar Equivalent of such Lender's Revolving
Credit Commitments then constitutes of the aggregate U.S. Dollar Equivalent of
the Revolving Credit Commitments of all Lenders (or, if the Revolving Credit
Commitments have terminated or expired, the percentage which (a) the U.S. Dollar
Equivalent of the Aggregate Revolving Credit Outstandings of such Lender at such
time then constitutes of (b) the U.S. Dollar Equivalent of the Aggregate
Revolving Credit Outstandings of all Revolving Credit Lenders at such time).
"Revolving Credit Lenders" means those Lenders which have a Revolving
Credit Commitment or, if such Commitments shall have been terminated, have
outstanding Revolving Credit Loans or Facility Letter of Credit Obligations.
"Revolving Credit Loans" means, with respect to a Lender, such Lender's
revolving credit loans made pursuant to Section 2.1.
"Revolving Credit Note" is defined in Section 2.2.3.
"S&P" means Standard & Poor's Rating Services, a division of The McGraw
Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
property by any Person with the intent to lease or use such Property as lessee
or in any other capacity.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Securitization Entity" means a wholly-owned Subsidiary of the Company
that engages in no activities other than Permitted Securitization Transactions
and any necessary related activities and owns no assets other than as required
for Permitted Securitization Transactions and (i) no portion of the Indebtedness
(contingent or otherwise) of which is guaranteed by the Company or any
Subsidiary of the
<PAGE>
Company or is recourse to or obligates the Company or any Subsidiary of the
Company in any way, other than pursuant to customary representations,
warranties, covenants, indemnities and other obligations entered into in
connection with a Permitted Securitization Transaction, and (ii) to which
neither the Company nor any Subsidiary of the Company has any material
obligation to maintain or preserve such entity's financial condition or cause
such entity to achieve certain levels of operating results.
"Significant Subsidiary" means each present or future subsidiary of the
Company which would constitute a "significant subsidiary" within the meaning of
Rule 1-02 of Regulation S-X as currently in effect promulgated by the Securities
and Exchange Commission.
"Single Employer Plan" means a Plan which is maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
means a Subsidiary of the Company.
"Subsidiary Borrowers" means Foreign Subsidiary Borrowers and Domestic
Subsidiary Borrowers.
"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which (a) represents more than 15% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, (b) is responsible for more than 15% of the consolidated
net sales of the Company and its Subsidiaries as reflected in the financial
statements referred to in clause (a) above, (c) represents more than 25% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as of the
Effective Date or (d) is responsible for more than 25% of the consolidated net
sales of the Company and its Subsidiaries as reflected in the financial
statements referred to in clause (c) above.
"Swing Lender" means Bank One, together with its Lending Installations.
"Swing Loans" means U.S. Swing Loans and Euro Swing Loans.
"Tangible Net Worth" means, as of any date, the difference of (i) Net
Worth, minus (ii) to the extent included in determining the amount under the
foregoing clause (i), the net book value of goodwill, cost in excess of fair
value of net assets acquired, patents, trademarks, tradenames and copyrights,
treasury stock and all other assets which are deemed intangible assets under
Agreement Accounting Principles.
"Term Loan Commitments" means the Euro Term Loan Commitments and the
U.S. Term Loan Commitments.
"Term Loans" means, with respect to a Lender, such Lender's portion of
the U.S. Term Loan and the Euro Term Loan.
<PAGE>
"Term Loan Note" is defined in Section 2.2.3.
"Total Debt" as of any date, means all of the following for the Company
and its Subsidiaries on a consolidated basis and without duplication: (i) all
debt for borrowed money and similar monetary obligations evidenced by bonds,
notes, debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets, in each case whether direct or indirect (other than accounts payable
and/or accrued expenses and commercial Letters of Credit with respect to the
foregoing, in each case arising in the ordinary course of such Person's business
payable in accordance with customary practices); (ii) all liabilities secured by
any Lien existing on property owned or acquired subject thereto, whether or not
the liability secured thereby shall have been assumed; (iii) all reimbursement
obligations under outstanding Letters of Credit (other than commercial Letters
of Credit referenced in clause (i) above) in respect of drafts which (A) may be
presented or (B) have been presented and have not yet been paid and are not
included in clause (i) above; (iv) all Off Balance Sheet Liabilities; and (v)
all guarantees and other Contingent Obligation relating to indebtedness or
liabilities of the type described in the foregoing clauses (i), (ii) or (iii);
provided that money borrowed by the Company against the cash value of life
insurance policies owned by the Company shall not be considered part of Total
Debt and Indebtedness consisting of avals by any of the Company's Subsidiaries
for the benefit of, and with respect to obligations which are not classified as
Indebtedness of, any of the Company's other Subsidiaries which are entered into
in the ordinary course of business and consistent with standard business
practices, shall not be considered part of Total Debt.
"Total Net Debt" means, at any time, Total Debt minus all cash and Cash
Equivalents with maturities of less than one year of the Company and its
Subsidiaries calculated on a consolidated basis, as calculated in accordance
with Agreement Accounting Principles.
"Total Net Debt to Capitalization Ratio" means the ratio of Total Net
Debt to the sum of (a) Total Net Debt plus (b) Net Worth, as calculated in
accordance with Agreement Accounting Principles.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance, Eurocurrency Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the actuarial
present value of all benefit liabilities under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefit
liabilities, all determined as of the then most recent valuation date for such
Plans in accordance with Section 4001(a)(18) of ERISA.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. Dollar Equivalent" means, on any date with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"U.S. Facility Letter of Credit" means any Letter of Credit for the
account of the Company.
"U.S. Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to U.S. Facility Letters of Credit.
<PAGE>
"U.S. Lender" means any U.S. Revolving Credit Lender or U.S. Term Loan
Lender.
"U.S. Loan" means any U.S. Revolving Credit Loan or U.S. Term Loan.
"U.S. Revolving Credit Commitment" means, as to any Lender at any time,
its obligation to make Revolving Credit Loans to the Company in Dollars in an
aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
set forth opposite such Lender's name in Schedule 1.1(a) under the heading "U.S.
Revolving Credit Commitment" or as otherwise established pursuant to Section
13.3, as such amount may be reduced from time to time pursuant to Sections 2.4,
13.3 and the other applicable provisions hereof.
"U.S. Revolving Credit Lender" means any Lender which has a U.S.
Revolving Credit Commitment.
"U.S. Revolving Credit Loans" means Revolving Credit Loans made to the
Company pursuant to Section 2.1.1.
"U.S. Swing Loan" is defined in Section 2.16.
"U.S. Term Loan" means, with respect to a Lender, such Lender's portion
of the term loan made in U.S. Dollars pursuant to Section 2.1.3.
"U.S. Term Loan Commitment" means as to any Lender at any time, its
obligation to make the U.S. Term Loan to the Company in an aggregate amount not
to exceed at any time outstanding the aggregate outstanding principal amount of
its respective U.S. Revolving Credit Loans of such Lender outstanding on the
Facility Termination Date or as otherwise established pursuant to Section 13.3,
as such amount may be reduced from time to time pursuant to Section 13.3 and the
other applicable provisions hereof.
"U.S. Term Loan Lender" means any Lender which has a U.S. Term Loan
Commitment or, if such Commitments have been terminated, has an outstanding Term
Loan.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, trustees or
similar persons thereof.
"Wholly Owned Subsidiary" of a Person means any other Person of which
100% of the outstanding Voting Stock of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly Owned
Subsidiaries of such Person, or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
<PAGE>
1.2 Rules of Construction. All terms defined in Section 1.1 shall
include both the singular and the plural forms thereof and shall be construed
accordingly. Use of the terms "herein", "hereof", and "hereunder" shall be
deemed references to this Agreement in its entirety and not to the Section or
clause in which such term appears. References to "Sections" and "subsections"
shall be to Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Notwithstanding anything herein, in any
financial statements of the Company or in Agreement Accounting Principles to the
contrary, for purposes of calculating the Applicable Margin and of calculating
and determining compliance with the financial covenants in Sections 6.17 and
6.18, including defined terms used therein, any Acquisitions made by the Company
or any of its Subsidiaries, including through mergers or consolidations and
including the incurrence of all Indebtedness related thereto and any other
related financial transactions, during the period for which such financial
covenants were calculated shall be deemed to have occurred on the first day of
the relevant period for which such financial covenants and the Applicable Margin
were calculated on a pro forma basis acceptable to the Agent.
ARTICLE II
THE CREDITS
2.1 Commitments.
2.1.1 From and including the Effective Date and prior to the
Facility Termination Date, each U.S. Revolving Credit Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make U.S. Revolving
Credit Loans to the Company and the Domestic Subsidiary Borrowers from time to
time so long as after giving effect thereto and to any concurrent repayment of
Loans the Aggregate U.S. Revolving Credit Outstandings of each U.S. Revolving
Credit Lender are equal to or less than its U.S. Revolving Credit Commitment.
Subject to the terms of this Agreement, the Company and the Domestic Subsidiary
Borrowers may borrow, repay and reborrow U.S. Revolving Credit Loans at any time
prior to the Facility Termination Date. The U.S. Revolving Credit Loans may be
Floating Rate Loans or Eurodollar Loans, or a combination thereof selected in
accordance with Sections 2.3 and 2.7. The U.S. Revolving Credit Commitments to
lend hereunder shall expire on the Facility Termination Date.
2.1.2 From and including the Effective Date and prior to the
Facility Termination Date, each Euro Revolving Credit Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make Euro Revolving
Credit Loans to the Company and the Foreign Subsidiary Borrowers from time to
time so long as after giving effect thereto and to any concurrent repayment of
Loans the Aggregate Euro Revolving Credit Outstandings of each Euro Revolving
Credit Lender are equal to or less than its Euro Revolving Credit Commitment.
Subject to the terms of this Agreement, the Company and the Foreign Subsidiary
Borrowers may borrow, repay and reborrow Euro Revolving Credit Loans at any time
prior to the Facility Termination Date. The Euro Revolving Credit Loans will be
Eurocurrency Loans as selected in accordance with Sections 2.3 and 2.7. The Euro
Revolving Credit Commitments to lend hereunder shall expire on the Facility
Termination Date.
2.1.3 Each U.S. Term Loan Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make a single U.S. Term Loan to the
Company and the Domestic Subsidiary Borrowers on the Facility Termination Date
in an amount not to exceed, with respect to each U.S. Term Loan Lender, the
aggregate outstanding principal amount of such Lender's U.S. Revolving Credit
Loans outstanding on the Facility Termination Date. The U.S. Term Loan, or any
portion thereof, may be
<PAGE>
Floating Rate Loans or Eurodollar Loans, or a combination thereof, with the
selection in accordance with procedures acceptable to the Agent.
2.1.4 Each Euro Term Loan Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make a single Euro Term Loan to the
Foreign Subsidiary Borrowers on the Facility Termination Date in an amount not
to exceed, with respect to each Euro Term Loan Lender, the aggregate outstanding
principal amount of such Lender's Euro Revolving Credit Loans outstanding on the
Facility Termination Date. The Euro Term Loan, or any portion thereof, will be
Eurocurrency Loans.
2.2 Repayment of Loans; Evidence of Debt.
2.2.1 (a) The Company and each Domestic Subsidiary Borrower
hereby unconditionally promise to pay to the Agent for the account of each U.S.
Revolving Credit Lender in U.S. Dollars the then unpaid principal amount of each
U.S. Revolving Credit Loan of such Lender made to the Company or such Domestic
Subsidiary Borrower on the Facility Termination Date and on such other dates and
in such other amounts as may be required from time to time under the terms of
this Agreement. The Company and each Domestic Subsidiary Borrower hereby further
agree to pay to the Agent for the account of each U.S. Revolving Credit Lender
interest in U.S. Dollars on the unpaid principal amount of the U.S. Revolving
Credit Loans from time to time outstanding until payment thereof in full at the
rates per annum, and on the dates, set forth in Section 2.8.
(b) The Company and each Foreign Subsidiary Borrower
hereby unconditionally promise to pay to the Agent for the account of each Euro
Revolving Credit Lender in the relevant Available Foreign Currency the then
unpaid principal amount of each Euro Revolving Credit Loan of such Lender made
to the Company or such Foreign Subsidiary Borrower on the Facility Termination
Date and on such other dates and in such other amounts as may be required from
time to time under the terms of this Agreement. The Company and each Foreign
Subsidiary Borrower hereby further agree to pay to the Agent for the account of
each Euro Revolving Credit Lender interest in the relevant Available Foreign
Currency on the unpaid principal amount of the Euro Revolving Credit Loans from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in Section 2.8.
(c) The Company and each Domestic Subsidiary Borrower
hereby unconditionally promise to pay to the Agent for the account of each U.S.
Term Loan Lender in U.S. Dollars the entire outstanding principal amount of the
U.S. Term Loan in eight (8) equal quarterly installments payable on the date
three months after the Facility Termination Date and each successive three
months thereafter to and including the Maturity Date, when the U.S. Term Loan
should be due and payable in full.
(d) The Company and each Foreign Subsidiary Borrower
hereby unconditionally promise to pay to the Agent for the account of each Euro
Term Loan Lender in the relevant Available Foreign Currencies the entire
outstanding principal amount of the Euro Term Loan in eight (8) equal quarterly
installments payable on the date three months after the Facility Termination
Date and each successive three months thereafter to and including the Maturity
Date, when the Euro Term Loan should be due and payable in full.
2.2.2 The books and records of the Agent and of each Lender shall,
to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
such books and records or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Loans made
to such Borrowers by such Lender in accordance with the terms of this Agreement.
<PAGE>
2.2.3 The Borrowers agree that, upon the request to the Agent by any
Lender from time to time and the subsequent request to the Company by the Agent,
the relevant Borrowers will execute and deliver to such Lender (a) promissory
notes of each Borrower evidencing the Revolving Credit Loans of any such
requesting Revolving Credit Lender, substantially in the form of Exhibit F-1
with appropriate insertions as to date, currency and principal amount (each, a
"Revolving Credit Note"), and (b) promissory notes of each Borrower evidencing
the Term Loans of any such requesting Term Loan Lenders, substantially in the
form of Exhibit F-2 with appropriate insertions as to date and principal amount
(each, a "Term Loan Note"); provided, that the delivery of such Notes shall not
be a condition precedent to the Effective Date or any Advance.
2.3 Procedures for Borrowing. (a) The Company and each Domestic
Subsidiary Borrower may borrow under the U.S. Revolving Credit Commitments and
each Foreign Subsidiary Borrower may borrow under the Euro Revolving Credit
Commitments, in each case from time to time prior to the Facility Termination
Date on any Business Day.
(b) In the case of a borrowing under the U.S. Revolving
Credit Commitments, the Company and each borrowing Domestic Subsidiary Borrower
shall give the Agent irrevocable notice (which notice must be received by the
Agent prior to 11:00 a.m., Chicago time) (i) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be Eurodollar Loans, or (ii) one Business Day prior to the
requested Borrowing Date otherwise, specifying in each case (w) the amount to be
borrowed, (x) the requested Borrowing Date, (y) whether the borrowing is to be
of Eurodollar Loans, Floating Rate Loans or a combination thereof and (z) 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 Periods therefor. Each
borrowing under the U.S. Revolving Credit Commitments shall be in an amount
equal to (A) in the case of Floating Rate Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if the then aggregate available U.S.
Revolving Credit Commitments are less than $5,000,000, such lesser amount) and
(B) 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 Company
or any such Domestic Subsidiary Borrower, as the case may be, the Agent shall
promptly notify each Revolving Credit Lender thereof. Not later than noon,
Chicago time on each requested Borrowing Date each Revolving Credit Lender shall
make an amount equal to its Pro Rata Share of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Agent at its Chicago office specified in Section 14.1 in U.S. Dollars and in
immediately available funds. The Agent shall on such date credit the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Agent by the Revolving Credit Lenders and in like funds as
received by the Agent.
(c) In the case of a borrowing under the Euro Revolving
Credit Commitments, the Company and each Foreign Subsidiary Borrower shall give
the Agent irrevocable notice (which notice must be received by the Agent prior
to 11:00 a.m., London time three Business Days prior to the requested Borrowing
Date) specifying in each case (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) the Available Foreign Currency thereof and (iv) the length
of the initial Interest Period therefor. Each borrowing by the Company or a
Foreign Subsidiary Borrower under Section 2.1.2 or 2.1.4 shall be in an
Available Foreign Currency. Each such borrowing by the Company or any Foreign
Subsidiary Borrower shall be in an amount equal to an amount in the relevant
Available Foreign Currency which is 5,000,000 units or a whole multiple of
1,000,000 units in excess thereof or such other amounts as may be agreed upon
between the Company and the Agent. Upon receipt of any such notice from any such
Borrower, the Agent shall promptly notify the relevant Revolving Credit Lenders
with respect to such Borrowing. Not later than 1:00 p.m., local time of the
Agent's funding office for such
<PAGE>
Borrower, on the requested Borrowing Date, each such Revolving Credit Lender
shall make an amount equal to its Pro Rata Share of the principal amount of such
Revolving Loans requested to be made on such Borrowing Date available to the
Agent at the Agent's funding office for such Borrower specified by the Agent
from time to time by notice to such Revolving Credit Lenders and in immediately
available or other same day funds customarily used for settlement in the
relevant Available Foreign Currency. The amounts made available by each such
Revolving Credit Lender will then be made available to the relevant Borrower at
the funding office for such Borrower and in like funds as received by the Agent.
(d) The Company and each borrowing Domestic Subsidiary
Borrower shall give the Agent irrevocable notice (which notice must be received
by the Agent prior to 11:00 a.m. Chicago time) at least 15 days prior to the
Facility Termination Date if the Company and such Domestic Subsidiary Borrowers
will be borrowing the U.S. Term Loan. The Company and each borrowing Foreign
Subsidiary Borrower shall give the Agent irrevocable notice (which notice must
be received by the Agent prior to 11:00 a.m., London time) at least 15 days
prior to the Facility Termination Date if the Company and such Foreign
Subsidiary Borrowers will be borrowing the Euro Term Loan. The initial interest
rate and Interest Period, if applicable, on the Term Loans will determined
pursuant to procedures acceptable to the Agent and the Borrowers and consistent
with this Agreement.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Company or any Foreign Subsidiary Borrower may permanently reduce the Euro
Revolving Credit Commitments, in whole or in part, ratably among the Euro
Revolving Credit Lenders in integral multiples of EUR5,000,000 and the Company
or any Domestic Subsidiary Borrower may permanently reduce the U.S. Revolving
Credit Commitments, in whole or in part, ratably among the U.S. Revolving Credit
Lenders in integral multiples of $10,000,000, in each case upon at least three
Business Days' irrevocable written notice to the Agent, and which notice shall
specify the amount of any such reduction, provided, however, that the Aggregate
Euro Revolving Credit Commitments may not be reduced below the Aggregate Euro
Revolving Credit Outstandings of all Lenders and the Aggregate U.S. Revolving
Credit Commitments may not be reduced below the Aggregate U.S. Revolving Credit
Outstandings of all Lenders. In addition, all accrued facility fees shall be
payable on the effective date of any termination of the Revolving Credit
Commitments. The Aggregate U.S. Revolving Credit Commitments shall be
automatically reduced, ratably among the U.S. Revolving Credit Commitments, by
the amount of any Permitted Securitization Transaction facility entered into on
or after February 13, 2002 which, when aggregated with all other Permitted
Securitization Transaction facilities entered into on or after February 13,
2002, exceeds $100,000,000, simultaneously with the closing of any such
Permitted Securitization Transaction facility.
2.5 Facility and Agent Fees. (a) Each Borrower agrees to pay to
the Agent for the account of each Lender a facility fee at the rate per annum
set forth in the Pricing Schedule on Exhibit A attached hereto, on the average
daily amount of each Revolving Credit Commitment of such Lender to such
Borrower, whether used or unused, from and including the Effective Date to but
excluding the Facility Termination Date, payable on each Payment Date hereafter
and on the Facility Termination Date. The facility fee payable in respect to
each Revolving Credit Commitment shall be payable in the currency in which such
Revolving Credit Commitment is denominated.
(b) The Company agrees to pay to the Agent for its own
account, such other fees as agreed to in writing between the Company and the
Agent.
2.6 Optional and Mandatory Principal Payments on All Loans.
2.6.1 Each Borrower may at any time and from time to time prepay
Floating Rate Loans, in whole or in part, without penalty or premium, upon at
least one Business Day's irrevocable notice to the
<PAGE>
Agent, specifying the date and amount of prepayment. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayment of Floating Rate Loans shall be in a
minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in
excess thereof.
2.6.2 Each Borrower may at any time and from time to time prepay,
without premium or penalty (but together with payment of any amount payable
pursuant to Section 3.4), its Eurodollar Loans and its Multicurrency Loans in
whole or in part, upon at least three Business Days' irrevocable notice to the
Agent specifying the date and amount of prepayment. Partial payments of
Eurodollar Loans shall be in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof. Partial prepayments of
Multicurrency Loans shall be in an aggregate principal amount in the relevant
Available Foreign Currency of 5,000,000 units or any integral multiple of
1,000,000 units in excess thereof, or such lesser principal amount as may equal
the outstanding Multicurrency Loans or such lesser amount as may be agreed to by
the Agent.
2.6.3 (i) If the Aggregate Euro Revolving Credit Outstandings exceed
the Aggregate Euro Revolving Credit Commitments at any time the Foreign
Subsidiary Borrowers shall promptly prepay the Aggregate Euro Revolving Credit
Outstandings or cash collateralize Facility Letters of Credit in the amount of
such excess and (ii) if the Aggregate U.S. Revolving Credit Outstandings exceed
the Aggregate U.S. Revolving Credit Commitments at any time the Company shall
promptly prepay the Aggregate U.S. Revolving Credit Outstandings or cash
collateralize Facility Letters of Credit in the amount of such excess.
2.6.4 Each prepayment pursuant to this Section 2.6 and each
conversion (other than a conversion of a Floating Rate Loan to a Fixed Rate
Loan) pursuant to Section 2.7 shall be accompanied by accrued and unpaid
interest on the amount prepaid to the date of prepayment and any amounts payable
under Section 3.4 in connection with such payment.
2.6.5 Prepayments pursuant to this Section 2.6 shall be applied as
follows: (a) in the case of prepayments made by the Company or a Domestic
Subsidiary Borrower, first to prepay Floating Rate Loans and second to prepay
Eurodollar Loans then outstanding in such order as the Company or such Borrower
may direct and (b) in the case of prepayments made by a Borrower of
Multicurrency Loans, to prepay Multicurrency Loans made to such Borrower in such
order as the Company or such Borrower may direct, provided that all prepayments
on any Loans to a Borrower shall be applied pro rata to the Loans owing by such
Borrower.
2.6.6 All amounts prepaid, other than prepayment of the Term Loans,
may be reborrowed and successively repaid and reborrowed, subject to the other
terms and conditions in this Agreement. All prepayments of the Term Loans will
be applied to the maturities thereof in inverse order.
2.7. Conversion and Continuation of Outstanding Advances.
2.7.1 Advances. Floating Rate Advances shall continue as Floating
Rate Advances unless and until such Floating Rate Advances are converted into
Eurodollar Advances. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at which
time such Eurodollar Advance shall be automatically converted into a Floating
Rate Advance unless the Company shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or
another Interest Period. Subject to the terms hereof, the Company may elect from
time to time to convert all or any part of a Revolving Credit Advance or Term
Loan of any Type to the Company or any
<PAGE>
Domestic Subsidiary Borrower into any other Type or Types of Advance; provided
that any conversion of any Eurodollar Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto. The Company shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of an Advance or continuation of a Eurodollar Advance not later than 11:00 a.m.
(Chicago time) at least one Business Day, in the case of a conversion into a
Floating Rate Advance, or three Business Days, in the case of a conversion into
or continuation of a Eurodollar Advance, prior to the date of the requested
conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation,
(b) the aggregate amount and Type of the Revolving Credit Advance
or Term Loan which is to be converted or continued, and
(c) the amounts and Type(s) of Revolving Credit Advance(s) or Term
Loan into which such Advance is to be converted or continued and, in the case of
a conversion into or continuation of a Eurodollar Advance, the duration of the
Interest Period applicable thereto.
2.7.2 Multicurrency Advances. Any Multicurrency Advances may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the relevant Borrower giving the Agent irrevocable notice not
later than 11:00 a.m. (London time) at least three Business Days prior to the
date of the requested continuation, specifying the duration of the Interest
Period applicable thereto, provided, that if the relevant Borrower shall fail to
give such notice, such Multicurrency Advance shall be automatically continued
for an Interest Period of one month provided that such continuation would not
extend the Interest Period beyond the Facility Termination Date in the case of
Euro Revolving Credit Loans or the Maturity Date in the case of the Euro Term
Loan.
2.8 Interest Rates, Interest Payment Dates; Interest and Fee
Basis. (a) Each Floating Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Loan is
made or is converted from a Fixed Rate Loan into a Floating Rate Loan pursuant
to Section 2.7 to but excluding the date it becomes due or is converted into a
Fixed Rate Loan pursuant to Section 2.7 hereof, at a rate per annum equal to the
Floating Rate for such day. Each Eurodollar Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to the Eurodollar Rate determined for such Interest Period. Each Multicurrency
Loan to any Foreign Subsidiary Borrower (other than a Swing Loan) shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the applicable Eurocurrency Rate determined for such Interest
Period or at such other interest rate as agreed to by such Foreign Subsidiary
Borrower and all Euro Lenders with a Commitment to such Foreign Subsidiary
Borrower.
(b) Interest accrued on each Floating Rate Advance shall be
payable on each Payment Date, commencing with the first such date to occur after
the Effective Date and at maturity. Interest accrued on each Fixed Rate Advance
shall be payable on the last day of its applicable Interest Period, on any date
on which the Fixed Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval during such Interest Period.
(c) Interest shall be payable for the day an Advance is made but
not for the day of any payment on the amount paid if payment is received prior
to 1:00 p.m. (local time) at the place of payment. If any payment of principal
of or interest on an Advance shall become due on a day which is not a Business
Day, except as otherwise provided in the definition of Interest Period, such
payment shall
<PAGE>
be made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
(d) All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period such interest or fee is payable over a year
comprised of 360 days or, in the case of Floating Rate Loans, 365/366 days,
unless the Agent determines that it is market practice to calculate such
interest or fees on Multicurrency Advances on a different basis.
(e) Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Fixed Rate Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such Fixed
Rate Advance. No Interest Period may end after, with respect to any Term Loan,
the Maturity Date, or, with respect to any Revolving Credit Loan, the Facility
Termination Date.
2.9 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in this Agreement, during the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrowers (which
notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that no Advance may be made as, converted into or
continued (after the expiration of the then current Interest Period) as a Fixed
Rate Advance, provided that, notwithstanding the foregoing, any outstanding
Eurocurrency Advance may be continued for an Interest Period not to exceed one
month after such notice to the Borrowers by the Required Lenders. Upon and
during the continuance of any Default under Section 7.2, the Required Lenders
may, at their option, by notice to the Company (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders as to changes and interest rates)
declare that (i) each Fixed Rate Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum, and (ii) each Floating Rate Advance and any
other amount due under this Agreement shall bear interest at a rate per annum
equal to the Floating Rate otherwise applicable to Floating Rate Loans plus 2%
per annum, provided that, upon and during the continuance of any acceleration
for any reason of any of the Obligations, the interest rate set forth in clauses
(i) and (ii) shall be applicable to all Advances without any election or action
on the part of the Agent or any Lender.
2.10 Pro Rata Payment, Method of Payment.
2.10.1 Each borrowing of Loans by the Company or any Domestic
Subsidiary Borrower from the U.S. Lenders shall be made pro rata according to
the Pro Rata Shares of such Lenders in effect on the date of such borrowing.
Each payment by the Company or any Domestic Subsidiary Borrower on account of
any facility fee shall be allocated by the Agent among the Lenders in accordance
with their respective Pro Rata Shares. Any reduction of the Commitments of the
U.S. Lenders shall be allocated by the Agent among the U.S. Lenders pro rata
according to the Pro Rata Shares of the U.S. Lenders with respect thereto.
Except as otherwise provided in this Agreement, each optional prepayment by the
Company or any Domestic Subsidiary Borrower on account of principal or interest
on its U.S. Loans shall be allocated by the Agent pro rata according to the
respective outstanding principal amounts thereof. All payments (including
prepayments) to be made by the Company or any Domestic Subsidiary Borrower
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made, without setoff,
deduction, or counterclaim, in immediately
<PAGE>
available funds to the Agent at the Agent's address specified pursuant to
Article XIV, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Company or the relevant Domestic Subsidiary
Borrower, as the case may be, by 1:00 p.m. (Chicago time) on the date when due.
Each payment delivered to the Agent for the account of any Lender shall be
delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to Article XIV or at any
Lending Installation specified in a notice received by the Agent from such
Lender.
2.10.2 Each borrowing of Euro Loans by any Foreign Subsidiary
Borrower in any Available Foreign Currency shall be allocated by the Agent pro
rata according to the Pro Rata Shares of the Euro Lenders with respect to such
Borrower in effect on the date of such Loan. Each payment by any Foreign
Subsidiary Borrower on account of any facility fee shall be allocated by the
Agent among the Lenders to such Foreign Subsidiary Borrower in accordance with
their respective Pro Rata Shares. Any reduction of any of the Euro Commitments
shall be allocated by the Agent pro rata according to the Pro Rata Shares of the
Euro Lenders with respect thereto. Except as provided in Section 2.6, each
payment (including each prepayment) by a Foreign Subsidiary Borrower on account
of principal of and interest on Euro Loans shall be allocated by the Agent pro
rata according to the respective principal amounts of the Euro Loans then due
and owing by such Borrower to each Euro Lender that made such Euro Loans. All
payments (including prepayments) to be made by a Borrower on account of Euro
Loans, whether on account of principal, interest, fees or otherwise, shall be
made without setoff, deduction, or counterclaim in the currency of such Euro
Loans (in same day or other funds customarily used in the settlement of
obligations in such currency) to the Agent for the account of the Euro Lenders
that made such Loans, at the payment office for such Euro Loans specified from
time to time by the Agent by notice to the Borrowers prior to 1:00 p.m. local
time at such payment office on the due date thereof. The Agent shall distribute
such payment to the Euro Lenders entitled to receive the same promptly upon
receipt in like funds as received. In the case of any payment of facility fees
by Foreign Subsidiary Borrowers under Section 2.5 and any prepayments required
of Foreign Subsidiary Borrowers under Section 2.6.3, the Company shall designate
which Foreign Subsidiary Borrowers shall pay such amounts and, absent such
determination or if any Default has occurred and is continuing, the Agent shall
determine which Foreign Subsidiary Borrower or Foreign Subsidiary Borrowers
shall make such payments, provided that it is acknowledged that each Foreign
Subsidiary Borrower is liable, without duplication, for the full amount of
facility fees payable under Section 2.5 and is obligated to make any required
prepayments under Section 2.6.3 to the extent such Foreign Subsidiary Borrower
has any Aggregate Euro Revolving Credit Outstandings.
2.11 Telephonic Notices. Each Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Advances, effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any Person or Persons the Agent or any Lender reasonably and in good faith
believes to be an Authorized Officer. Each Borrower agrees to deliver promptly
to the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized Officer.
If the written confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent and the Lenders
shall govern absent manifest error.
2.12 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Revolving Credit Commitment reduction
notice, Multicurrency Commitment reduction notice, Borrowing notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each Fixed
Rate Advance promptly upon determination of such interest rate and will give
each Lender prompt notice of each change in the Alternate Base Rate.
<PAGE>
2.13 Lending Installations. Each Lender may, except as otherwise
provided in Section 3.6, make and book its Loans at any Lending Installation(s)
selected by such Lender and may change its Lending Installation(s) from time to
time. All terms of this Agreement shall apply to any such Lending
Installation(s) and the Notes, if any, shall be deemed held by each Lender for
the benefit of such Lending Installation(s). Each Lender may, by written or
telex notice to the Agent and the applicable Borrower, designate one or more
Lending Installations which are to make and book Loans and for whose account
Loan payments are to be made.
2.14 Non-Receipt of Funds by the Agent. Unless a Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of a Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Agent, the recipient of such payment shall, on demand by the Agent, repay
to the Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate for the first five days and the interest rate applicable to
the relevant Loan for each day thereafter or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.15 Facility Letters of Credit.
2.15.1 Obligation to Issue. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrowers herein set forth, the Issuers hereby agree to issue for the account of
a Borrower through such of the Issuer's Lending Installations or Affiliates as
the Issuer may determine, one or more Facility Letters of Credit in accordance
with this Section 2.15, from time to time during the period, commencing on the
Effective Date and ending five Business Days prior to the Facility Termination
Date.
2.15.2 Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2, the obligation
of an Issuer to issue any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
(b) the requested Facility Letter of Credit shall not have an
expiration date later than the earlier of (i) one year after the date of
issuance of such Facility Letter of Credit and (ii) five Business Days prior to
the Facility Termination Date, provided that any Facility Letter of Credit with
a one-year tenor may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(ii) above);
(c) after giving effect to the Facility Letter of Credit requested
hereunder, the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, shall not exceed (i)
$50,000,000 in the case of Facility Letters of Credit for the account of the
Company and Domestic Subsidiary Borrowers and (ii) EUR25,000,000 in the case of
Facility Letters of Credit for the
<PAGE>
account of Foreign Subsidiary Borrowers, and no prepayment would be required
under this Agreement and no provision of this Agreement would be breached;
(d) the applicable Borrower shall have delivered to the applicable
Issuer at such times and in such manner as such Issuer may reasonably prescribe
such documents and materials as may be required pursuant to the terms of the
proposed Letter of Credit and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or decree of
any Court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain such Issuer from issuing the Facility Letter of Credit and no
law, rule or regulation applicable to such Issuer and no request or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuer shall prohibit or request that such Issuer refrain
from the issuance of Letters of Credit generally or the issuance of that
Facility Letter of Credit.
2.15.3 Procedure for Issuance of Facility Letters of Credit. (a) The
applicable Borrower shall give one of the Issuers and the Agent three Business
Days' prior written notice of any requested issuance of a Facility Letter of
Credit under this Agreement (except that, in lieu of such written notice, a
Borrower may give an Issuer (i) notice of such request by tested telex or other
tested arrangement satisfactory to such Issuer or (ii) telephonic notice of such
request if confirmed in writing by delivery to such Issuer (A) immediately (x)
of a telecopy of the written notice required hereunder which has been signed by
an Authorized Officer of such Borrower or (y) of a telex containing all
information required to be contained in such written notice and (B) promptly
(but in no event later than the requested time of issuance) of a copy of the
written notice required hereunder containing the original signature of an
Authorized Officer of such Borrower); such notice shall be irrevocable and shall
specify the stated amount and Available Foreign Currency or U.S. Dollars of the
Facility Letter of Credit requested (which requested currency shall be limited
to the currency in which such Borrower may obtain Loans under this Agreement),
the effective date (which day shall be a Business Day) of issuance of such
requested Facility Letter of Credit, the date on which such requested Facility
Letter of Credit is to expire (which date shall be a Business Day and shall in
no event be later than the fifth day prior to the Facility Termination Date),
the purpose for which such Facility Letter of Credit is to be issued, and the
Person for whose benefit the requested Facility Letter of Credit is to be
issued. The Agent shall give notice to each applicable Revolving Credit Lender
of the issuance of each Facility Letter of Credit reasonably promptly after such
Facility Letter of Credit is issued. At the time such request is made, the
requesting Borrower shall also provide the applicable Issuer with all
information necessary for the issuance of the Facility Letter of Credit it is
requesting. Such notice, to be effective, must be received by such Issuer not
later than 2:00 p.m. (local time) or the time agreed upon by such Issuer and
such Borrower on the last Business Day on which notice can be given under this
Section 2.15.3.
(b) Subject to the terms and conditions of this Section 2.15.3 and
provided that the applicable conditions set forth in Sections 4.1 and 4.2 hereof
have been satisfied, the Issuer shall, on the requested date, issue a Facility
Letter of Credit on behalf of the applicable Borrower in accordance with such
Issuer's usual and customary business practices.
(c) The Issuers shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2.15 are met as though a new
Facility Letter of Credit was being requested and issued.
2.15.4 Reimbursement Obligations. (a) Each Borrower agrees to pay to
the Issuer the amount of all Reimbursement Obligations, interest and other
amounts payable to the Issuer under or in
<PAGE>
connection with any Facility Letter of Credit issued on behalf of such Borrower
immediately when due, irrespective of any claim, set-off, defense or other right
that the Borrower, the Company or any Subsidiary may have at any time against
the Issuer or any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
that any Borrower or any Subsidiary may have at any time against a beneficiary
named in a Facility Letter of Credit or any transferee of any Facility Letter of
Credit (or any Person for whom any such transferee may be acting), any Issuer,
any Lender, or any other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between any Borrower or any
Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under
the Facility Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of
any draw under a Facility Letter of Credit. Such Borrower shall reimburse the
applicable Issuer for drawings under a Facility Letter of Credit issued by it on
behalf of such Borrower promptly after the payment by the Issuer. Any
Reimbursement Obligation with respect to any Facility Letter of Credit shall
bear interest from the date of the relevant drawings under the pertinent
Facility Letter of Credit at (i) in the case of such Obligations denominated in
U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of
such Obligations denominated in an Available Foreign Currency, at the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers denominated in such currency in the
country of issue of such currency, as reasonably determined by the Agent. In
addition to its other rights, the Issuers shall also have all rights for
indemnification and reimbursement as each Lender is entitled under this
Agreement.
2.15.5 Participation. (a) Immediately upon issuance by an Issuer of
any Facility Letter of Credit in accordance with the procedures set forth in
Section 2.15.3, (i) with respect to each U.S. Facility Letter of Credit, each
Revolving Credit Lender shall be deemed to have irrevocably and unconditionally
purchased and received from such Issuer, without recourse or warranty, an
undivided interest and participation equal to its Pro Rata Share of such U.S.
Facility Letter of Credit (including, without limitation, all obligations of the
applicable Borrower with respect thereto) and any security therefor or guaranty
pertaining thereto and (ii) with respect to each Multicurrency Facility Letter
of Credit, each Euro Lender with respect to the Borrower for the account of
which such Multicurrency Facility Letter of Credit is issued shall be deemed to
have irrevocably and unconditionally purchased and received from such Issuer,
without recourse or warranty, an undivided interest and participation equal to
its Pro Rata Share in such Multicurrency Facility Letter of Credit (including,
without limitation, all obligations of the applicable Borrower with respect
thereto), any security therefor or guaranty pertaining thereto; provided, that a
Letter of Credit issued by an Issuer shall not be deemed to be a Facility Letter
of Credit for
<PAGE>
purposes of this Section 2.15.5 if such Issuer shall have received written
notice from any Revolving Credit Lender on or before one Business Day prior to
the date of its issuance of such Letter of Credit that one or more of the
conditions contained in Sections 4.1 or 4.2 are not then satisfied, and, in the
event an Issuer receives such a notice, it shall have no further obligation to
issue any Letter of Credit until such notice is withdrawn by that Revolving
Credit Lender or such condition has been effectively waived in accordance with
the provisions of this Agreement.
(b) In the event that an Issuer makes any payment under any
Facility Letter of Credit and the applicable Borrower shall not have repaid such
amount to the Issuer pursuant to Section 2.15.4, the Issuer shall promptly
notify the Agent and each Revolving Credit Lender participating in such Letter
of Credit of such failure, and each Revolving Credit Lender participating in
such Letter of Credit shall promptly and unconditionally pay to the Agent for
the account of such Issuer the amount of such Lender's Pro Rata Share of the
unreimbursed amount of any such payment in such currency. If any Revolving
Credit Lender participating in such Facility Letter of Credit fails to make
available to such Issuer any amounts due to such Issuer pursuant to this Section
2.15.5(b), such Issuer shall be entitled to recover such amount, together with
interest thereon (i) in the case of amounts denominated in U.S. Dollars, at the
Federal Funds Effective Rate, for the first three Business Days after such
Lender receives such notice and thereafter, at the Floating Rate, or (ii) in the
case of amounts denominated in an Available Foreign Currency, at a local cost of
funds rate for obligations in such currency as determined by the Agent for the
first three Business Days after such Lender receives such notice, and thereafter
at the floating rate of interest correlative to the Floating Rate customarily
applicable to similar extensions of credit to corporate borrowers denominated in
such currency in the country of issue of such currency, as determined by the
Agent, in either case payable (i) on demand, (ii) by setoff against any payments
made to such Issuer for the account of such Lender or (iii) by payment to such
Issuer by the Agent of amounts otherwise payable to such Lender under this
Agreement. The failure of any Revolving Credit Lender to make available to the
Agent its Pro Rata Share of the unreimbursed amount of any such payment shall
not relieve any other Revolving Credit Lender of its obligation hereunder to
make available to the Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made, but no Revolving Credit Lender
shall be responsible for the failure of any other Revolving Credit Lender to
make available to the Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to each Revolving Credit Lender that has funded its participating interest
therein, in like funds as received an amount equal to such Lender's Pro Rata
Share thereof.
(d) The obligations of a Re |
