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Sample Business ContractsHome: Sample Business Contracts:
MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT
among
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
The Several Lenders
from Time to Time Parties Hereto
JPMORGAN CHASE BANK,
as Arranger
JPMORGAN CHASE BANK,
as Sole Advisor, Lead Arranger and Bookrunner
JPMORGAN CHASE BANK,
as Administrative Agent
THE BANK OF NOVA SCOTIA,
as Documentation Agent
Dated as of August 14, 2002
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...........................................1
1.1. Defined Terms...........................................1
1.2. Other Definitional Provisions...........................18
SECTION 2. THE COMMITTED RATE LOANS..............................19
2.1. Committed Rate Loans....................................19
2.2. Procedure for Committed Rate Loan Borrowing.............19
2.3. Repayment of Committed Rate Loans; Evidence of Debt.....19
2.4. Termination or Reduction of Commitments.................20
2.5. Optional Prepayments....................................20
2.6. Conversion and Continuation Options.....................20
2.7. Minimum Amounts of Tranches.............................21
2.8. Interest Rates and Payment Dates for
Committed Rate Loans...............................21
2.9. Inability to Determine Interest Rate....................21
2.10. Commitment Increases....................................22
SECTION 3. THE COMPETITIVE ADVANCE LOANS.........................23
3.1. Competitive Advance Loans...............................23
3.2. Procedure for Competitive Advance Loan Borrowing........24
3.3. Repayment of Competitive Advance Loans;
Evidence of Debt...................................24
3.4. Prepayments.............................................25
SECTION 4. THE LETTERS OF CREDIT.................................25
4.1. L/C Commitment..........................................25
4.2. Procedure for Issuance of Letters of Credit
under this Agreement...............................25
4.3. Fees, Commissions and Other Charges.....................26
4.4. L/C Participations......................................26
4.5. Reimbursement Obligation of the Company.................27
4.6. Obligations Absolute....................................27
4.7. Letter of Credit Payments...............................28
4.8. Application.............................................28
4.9. Issuance of Letters of Credit Priority for
Acceptance of Time Drafts..........................28
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS
AND LETTERSOF CREDIT..................................29
5.1. Facility Fee............................................29
5.2. Computation of Interest and Fees........................29
5.3. Pro Rata Treatment and Payments.........................29
5.4. Requirements of Law.....................................30
Page
5.5. Taxes...................................................32
5.6. Indemnity...............................................34
5.7. Change of Lending Office................................34
5.8. Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments.........35
SECTION 6. REPRESENTATIONS AND WARRANTIES........................36
6.1. Financial Condition.....................................36
6.2. No Change...............................................36
6.3. Corporate Existence; Compliance with Law................36
6.4. Corporate Power; Authorization;
Enforceable Obligations............................37
6.5. No Legal Bar............................................37
6.6. No Material Litigation..................................37
6.7. No Default..............................................37
6.8. Ownership of Property; Liens............................37
6.9. Intellectual Property...................................37
6.10. Taxes...................................................38
6.11. Federal Regulations.....................................38
6.12. ERISA...................................................38
6.13. Investment Company Act; Other Regulations...............39
6.14. Subsidiaries............................................39
6.15. Purpose of Loans and Letters of Credit..................39
6.16. Accuracy and Completeness of Information................39
6.17. Environmental Matters...................................39
SECTION 7. CONDITIONS PRECEDENT..................................40
7.1. Conditions to Initial Extensions of Credit..............40
7.2. Conditions to Each Extension of Credit..................41
SECTION 8. AFFIRMATIVE COVENANTS.................................42
8.1. Financial Statements....................................42
8.2. Certificates; Other Information.........................42
8.3. Payment of Obligations..................................43
8.4. Conduct of Business and Maintenance of Existence........43
8.5. Maintenance of Property; Insurance......................44
8.6. Inspection of Property; Books and Records; Discussions..44
8.7. Notices.................................................44
8.8. Environmental Laws......................................45
SECTION 9. NEGATIVE COVENANTS....................................45
9.1. Financial Condition Covenants...........................45
9.2. Limitation on Indebtedness of Restricted Subsidiaries...45
9.3. Limitation on Liens.....................................46
9.4. Limitation on Fundamental Changes.......................48
-ii-
Page
9.5. Limitation on Sale of Assets............................48
9.6. Limitation on Dividends.................................49
9.7. Limitation on Investments, Loans and Advances...........49
9.8. Limitation on Optional Payments of Subordinated
Debt and Modifications of Subordination Provisions......50
9.9. Limitation on Transactions with Affiliates..............50
9.10. Limitation on Sales and Leasebacks......................50
9.11. Limitation on Changes in Fiscal Year....................51
9.12. Limitation on Guarantee Obligations in respect of
Indebtedness of Subsidiaries other than
Restricted Subsidiaries............................51
9.13. Limitation on Subsidiaries other than
Restricted Subsidiaries............................51
9.14. Limitation on Guarantee Obligations.....................51
SECTION 10. EVENTS OF DEFAULT...................................51
SECTION 11. THE ADMINISTRATIVE AGENT AND THE ARRANGER...........53
11.1. Appointment............................................53
11.2. Delegation of Duties...................................54
11.3. Exculpatory Provisions.................................54
11.4. Reliance by Administrative Agent.......................54
11.5. Notice of Default......................................54
11.6. Non-Reliance on Administrative Agent and
Other Lenders....................................55
11.7. Indemnification........................................55
11.8. Administrative Agent in Its Individual Capacity........56
11.9. Successor Administrative Agent.........................56
11.10. The Arranger...........................................56
SECTION 12. MISCELLANEOUS........................................56
12.1. Amendments and Waivers Generally;
Amendments to Schedules...........................56
12.2. Notices................................................57
12.3. No Waiver; Cumulative Remedies.........................58
12.4. Survival of Representations and Warranties.............58
12.5. Payment of Expenses and Taxes..........................58
12.6. Successors and Assigns; Participations and Assignments.59
12.7. Adjustments; Set-off...................................61
12.8. Judgment...............................................62
12.9. Counterparts...........................................62
12.10. Severability...........................................62
12.11. Integration............................................62
12.12. GOVERNING LAW..........................................62
12.13. Submission To Jurisdiction; Waivers....................62
12.14. Acknowledgements.......................................63
12.15. WAIVERS OF JURY TRIAL..................................63
12.16. Confidentiality........................................63
12.17. Termination of Existing Credit Agreement...............64
-iii-
SCHEDULES
Schedule I: Lenders and Commitments
Schedule II: Administrative Schedule
Schedule III: Material Debt Instruments
Schedule IV: Restricted Subsidiaries
Schedule V: Issuing Banks
Schedule 6.14: Subsidiaries
Schedule 9.2: Existing Indebtedness and Liens
EXHIBITS
Exhibit A: Schedule Amendment
Exhibit B: Form of Borrowing Certificate
Exhibit C: Assignment and Acceptance
Exhibit D-1: Opinion of Jones, Day, Reavis & Pogue
Exhibit D-2: Opinion of General Counsel
Exhibit E: New Lender Supplement
Exhibit F: Commitment Increase Supplement
Exhibit G: Form of Exemption Certificate
-iv-
MULTI-CURRENCY, MULTI-OPTION CREDIT AGREEMENT, dated as of
August 14, 2002, among:
(i) HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED, a Delaware
corporation (the "Company");
(ii) the several banks and other financial institutions from time
to time parties to this Agreement (each, a "Lender"; and
collectively, the "Lenders");
(iii) the Bank of Nova Scotia as the Documentation Agent (the
"Documentation Agent"); and
(iv) JPMORGAN CHASE BANK, as Arranger (the "Arranger") and as
administrative agent for the Lenders hereunder (and its successors
in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to make available
a credit facility pursuant to which (i) the Company may borrow revolving
credit loans at committed interest rates and short-term loans at interest
rates determined by a competitive bidding process to be conducted by the
Company and (ii) one or more Issuing Banks (as hereinafter defined)will
issue letters of credit for the account of the Company and each of the
Lenders will acquire a participating interest in each such letter of
credit;
WHEREAS, the Company has requested that the loans made, and letters of
credit issued, under this Agreement be denominated, at the option of the
Company in United States Dollars or Available Foreign Currencies (as
hereinafter defined); and
WHEREAS, the Lenders are willing to make such credit facility available;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum equal to the greatest of
(a)the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus one and a half of 1%. Any change in the ABR
due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans in Dollars bearing interest based upon
the ABR.
"Adjusted Eurocurrency Rate": with respect to any
Eurocurrency Loan for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next
1
1/100 of 1%)equal to (a) the Eurocurrency Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Schedule": Schedule II to this Agreement,
which contains interest rate definitions and administrative
information in respect of each Currency and each Type of Loan.
"Affiliate": as to any Person, any other Person (other than
a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of
directors of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or
otherwise.
"Agreement": this Multi-Currency, Multi-Option Credit
Agreement, as amended, supplemented or otherwise modified from
time to time.
"Agreement Currency": as defined in subsection 12.8(b).
"Applicable Margin": for each day during each Interest Period
in respect of any Eurocurrency Loan, the margin per annum set forth
below opposite the Interest Coverage Ratio (in the applicable
Ratings category) shown on the last Interest Coverage Ratio
Certificate delivered pursuant to subsection 8.2(c) prior to such day:
Interest Coverage Ratio Applicable Margin
(basis points)
If Ratings are at BBB or Baa2 or
--------------------------------
higher:
------
Interest Coverage Ratio at any level: 80.0
If Ratings are BBB- or Baa3:
Less than 5.00 100.0
Greater than or equal to 5.00 and less
than 6.25 95.0
Greater than or equal to 6.25 and less
than 7.5 92.5
Greater than or equal to 7.5 90.0
2
If Ratings are at or below BB+ or
---------------------------------
Bal or unrated:
---------------
Less than 5.00 125.0
Greater than or equal to 5.00 and less
than 6.25 107.5
Greater than or equal to 6.25 and less
than 7.5 105.0
Greater than or equal to 7.5 100.0;
provided, however, that, (i) in the event that no Interest Coverage
Ratio Certificate has been delivered for a fiscal quarter prior to
the last date on which it can be delivered without violation of
subsection 8.2(c), the Applicable Margin from such date until such
Interest Coverage Ratio Certificate is actually delivered shall be
that applicable when the Interest Coverage Ratio is less than 5.00
at the lowest Rating level and (ii) in the event of a split Rating,
the pricing applicable to the highest Rating shall apply unless the
two Ratings are more than one level apart, in which case the
pricing applicable to the level one level above the lowest Rating
shall apply. Any change in the Applicable Margin resulting from a
change in Ratings shall become effective on the date on which change
is announced by the applicable ratings agency. Notwithstanding the
foregoing, until delivery to the Lenders of the Company's financial
statements, and related Interest Coverage Ratio Certificate, for the
second full fiscal quarter after the Closing Date, the Applicable
Margin shall be 95.0 basis points.
"Application": in respect of each Letter of Credit issued by an
Issuing Bank, an application, in such form as such Issuing Bank may
specify from time to time, requesting issuance of such Letter of
Credit.
"Assessment Rate": for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup
"B" (or a comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the Federal
Deposit Insurance Corporation for insurance by such Corporation of
time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the
Assessment Rate as aforesaid, then the Assessment Rate shall be such
annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": such Assignment and Acceptance,
substantially in the form of Exhibit C, executed and delivered pursuant
to subsection 12.6(c).
3
"Available Foreign Currencies": euro, Pounds Sterling,
Danish Kroner, Japanese Yen, Swedish Krona, Swiss Francs, Hong Kong
Dollars, Canadian Dollars, Singapore Dollars, and any other available
and freely-convertible foreign currency selected by the Company and
approved by the Administrative Agent in the manner described in
subsection 12.1(b).
"Base CD Rate": the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Borrowing Date": any Business Day on which a Loan is to be
made at the request of the Company under this Agreement.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Business": as defined in subsection 6.17.
"Business Day": (a) when such term is used in respect of any
amount denominated or to be denominated in (i) any Available Foreign
Currency, a London Banking Day which is also a day on which banks are
open for general banking business in (x) the city which is the
principal financial center of the country of issuance of such
Available Foreign Currency, (y) in the case of euro only, Frankfurt
am Main, Germany (or such other principal financial center as the
Administrative Agent may from time to time nominate for this purpose)
and (z) New York City and (ii) Dollars, (x) in the case of a
Eurocurrency Loan, a London Banking Day which is also a day other
than a Saturday or Sunday on which banks are open for general banking
business in New York City, and (y) in the case of an ABR Loan, a day
other than a Saturday or Sunday on which banks are open for general
banking business in New York City, (b) when such term is used for
the purpose of determining the date on which the Eurocurrency Rate
is determined under this Agreement for any Loan denominated in euro
for any Interest Period therefor and for purposes of determining the
first and last day of any Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days and (c) when such term is used to describe a day on
which a request is to be made to an Issuing Bank for issuance of a
Letter of Credit or on which a Letter of Credit is to be issued,
such term shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in the city in which such Issuing
Bank's Issuing Office is located.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed
or insured by the United States Government or any agency thereof;
(b) marketable general obligations issued by any state of the
United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of
4
acquisition, having one of the two highest credit ratings from
either Standard & Poor's Corporation or Moody's Investors Service,
Inc.; (c) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements having maturities of one year or less from the
date of acquisition issued, and money market deposit accounts issued
or offered by any Lender or by any commercial bank organized under
the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $100,000,000; and (d)
commercial paper of an issuer rated at least A-2 by Standard & Poor's
Corporation or P-2 by Moody's Investors Service, Inc., or carrying
an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of
investments, and, in either case, maturing within one year from the
date of acquisition.
"C/D Assessment Rate": for any day, the annual assessment rate
in effect on such day which is payable by a member of the Bank
Insurance Fund maintained by the Federal Deposit Insurance
Corporation(the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification)within the meaning of 12 C.F.R. 327.3(d) (or any
successor provision)to the FDIC (or any successor) for the FDIC's
(or such successor's)insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Change of Control": an event or series of events by which
(i) any "person" or "group" (as such terms are defined in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than the Permitted Investor, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the
right to acquire without condition, other than passage of time,
whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the
total voting power of the then outstanding Voting Stock of the
Company, (ii)(A) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all
of its properties and assets (determined on a consolidated basis for
the Company and its Subsidiaries taken as a whole) to any Person,
or (B) any corporation consolidates with or merges into the
Company or a Subsidiary of the Company in a transaction in which
the outstanding Voting Stock of the Company is changed into or
exchanged for cash, securities or other property, other than a
transaction solely between the Company and a Subsidiary of the
Company or (iii) during any period of two consecutive years,
individuals who at the beginning of such period 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 by the shareholders of the Company was approved by a
5
vote of 66 2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office; provided, however, that notwithstanding
anything to the contrary in this definition, transfer of beneficial
ownership of shares held by the Permitted Investor upon the death
of the Permitted Investor to the heirs and devisees of the
Permitted Investor shall not constitute a Change of Control.
"Closing Date": the date on or before August 14, 2002 on
which the conditions precedent set forth in subsection 7.1 shall
be satisfied.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commercial Letter of Credit": as defined in subsection 4.1(b).
"Commitment": as to any Lender, the obligation of such
Lender to make and/or acquire participating interests in Loans
and issue and/or acquire participating interests in Letters of
Credit hereunder in an aggregate Dollar Equivalent Amount at
any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may be
changed from time to time in accordance with the provisions of
this Agreement.
"Commitment Increase Notice": as defined in subsection 2.10(a).
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which the amount of such
Lender's Exposure then outstanding constitutes of the aggregate amount
of the Exposure of all the Lenders then outstanding).
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
"Committed Rate Loan": as defined in subsection 2.1; a Committed
Rate Loan bearing interest based upon the ABR shall be a "Committed Rate
ABR Loan", and a Committed Rate Loan bearing interest based upon the
Eurocurrency Rate shall be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer under
Section 414(b),(c), (m) or (o) of the Code.
"Company Obligations": the unpaid principal of and interest on the
Loans made to the Company, all Reimbursement Obligations in respect of
Letters of Credit issued for the account of the Company and all other
obligations and liabilities of the Company to the Administrative Agent,
any Issuing Bank or any Lender (including, without limitation, interest
accruing after the maturity or earlier acceleration of the Loans and
6
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Company, 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, now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Loans, the Letters of Credit, 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 (including, without limitation, all fees
and disbursements of counsel to the Administrative Agent, any Issuing
Bank or any Lender) or otherwise.
"Competitive Advance Loan": as defined in subsection 3.1.
"Consolidated Capitalization": at any date, the sum of
(i) shareholders' equity of the Company and (without duplication) its
consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, and (ii) Consolidated Total Debt.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period, plus the amount of taxes, interest, depreciation and
amortization deducted from earnings in determining such Consolidated Net
Income.
"Consolidated Interest Expense": for any period, the amount of
interest expense deducted from earnings of the Company and its
consolidated Subsidiaries in determining Consolidated Net Income for
such period in accordance with GAAP.
"Consolidated Net Income": for any period, the net income of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Senior Debt": at any date, Consolidated Total Debt
less the outstanding principal amount of Subordinated Debt.
"Consolidated Total Assets": at any date, the aggregate amount of
the assets of the Company and its consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt": at any date, without duplication, the
aggregate of all Indebtedness (including the current portion thereof) of
the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Credit Re-Allocation Date": as defined in subsection 2.10(d).
"Currencies": the collective reference to Dollars and the Available
Foreign Currencies.
"Default": any event or condition that upon notice, the lapse of
time, or both, would constitute an Event of Default.
7
"Dollar Equivalent Amount": with respect to the amount of any
Available Foreign Currency on any date, the equivalent amount in Dollars
of such amount of Available Foreign Currency, as determined by the
Administrative Agent using the Exchange Rate.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Environmental Laws": any and all applicable material, foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, enforceable requirements of any
Governmental Authority or other Requirements of Law (including common
law)regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may
at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro": the single currency of participating member states of the
European Union.
"Eurocurrency Loan": any Loan bearing interest based upon a
Eurocurrency Rate.
"Eurocurrency Rate": in respect of each Currency, the rate
determined as the Eurocurrency Rate for such Currency in the manner set
forth in the Administrative Schedule.
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any Available Foreign Currency
on any date, the rate at which such Available Foreign Currency may be
exchanged into Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M. London time on such date. In the
event that such rate does not appear on any Reuters currency page, the
"Exchange Rate" with respect to such Available Foreign Currency shall be
determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative
Agent and the Company or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange
operations in respect of such Available Foreign Currency are then being
conducted, at or about 10:00 A.M., local time, at such date for the
purchase of Dollars with such Available Foreign Currency, for delivery
two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"Exposure": at any date, the aggregate Dollar Equivalent Amount of
(a) all Loans then outstanding and (b) all L/C Obligations then
outstanding.
8
"Extensions of Credit": the collective reference to Loans made and
Letters of Credit issued under this Agreement.
"Facility Fee Rate": for each day during each fiscal quarter of the
Company, the rate per annum set forth below opposite the Interest
Coverage Ratio in the applicable Ratings category shown on the Interest
Coverage Ratio Certificate required pursuant to subsection 8.2(c) to be
delivered for the immediately preceding fiscal quarter:
Interest Coverage Ratio Facility Fee
(basis points)
If Ratings are at BBB or Baa2 or
--------------------------------
higher:
------
Interest Coverage Ratio at any
level: 20.0
If Ratings are BBB- or Baa3:
Less than 5.00 37.5
Greater than or equal to 5.00 and
less than 6.25 30.0
Greater than or equal to 6.25 and
less than 7.5 27.5
Greater than or equal to 7.5 25.0
If Ratings are at or below BB+ or
Bal (or unrated):
Less than 5.00 50.0
Greater than or equal to 5.00 and
less than 6.25 42.5
Greater than or equal to 6.25 and
less than 7.5 40.0
Greater than or equal to 7.5 37.5;
provided, however, that, (i) in the event that no Interest Coverage
Ratio Certificate has been delivered for a fiscal quarter prior to the
last day of the next succeeding fiscal quarter, the Facility Fee Rate
during such next succeeding fiscal quarter shall be that applicable when
the Interest Coverage Ratio is less than 5.0 at the lowest Rating level
and (ii) in the event of a split Rating, the pricing applicable to the
highest Rating shall apply unless the two Ratings are more than one
level apart, in which case the pricing applicable
9
to the level one level above the lowest Rating shall apply. Any
change in the Facility Fee Rate resulting from a change in Ratings
shall become effective on the date on which such change is announced
by the applicable ratings agency. Notwithstanding the foregoing,
until delivery to the Lender of the Company's financial statements,
and related Interest Coverage Ratio Certificate for the second full
fiscal quarter after the Closing Date, the applicable Facility Fee
shall be 30.0 basis points.
"Federal Funds Effective Rate": the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter": the letter agreement, dated June 14, 2002, between
the Company and JPMorgan Chase.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Funding Office": for each Type of Loan and each Currency, the
Funding Office set forth in respect thereof in the Administrative
Schedule.
"Funding Time": for each Type of Loan and each Currency, the
Funding Time set forth in respect thereof in the Administrative Schedule.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising applicable
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations(the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary
10
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall
not include (x) endorsements of instruments for deposit or collection
in the ordinary course of business or (y) obligations of the Company
or any of its Subsidiaries under arrangements entered into in the
ordinary course of business whereby the Company or such Subsidiary
sells inventory to other Persons under agreements obligating the Company
or such Subsidiary to repurchase such inventory, at a price not exceeding
the original sale price, upon the occurrence of certain specified events.
The amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company
in good faith.
"Indebtedness": of any Person at any date, all indebtedness or
obligations of such Person (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices), as reflected on the balance sheet of such Person
prepared in accordance with GAAP.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 6.9.
"Interest Coverage Ratio": for any period of four consecutive fiscal
quarters, Consolidated EBITDA divided by Consolidated Interest Expense for
such period.
"Interest Coverage Ratio Certificate": as defined in
subsection 8.2(c).
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, and on the Termination Date (b) as to any Committed Rate
Eurocurrency Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Committed Rate
Eurocurrency Loan having an Interest Period longer than three months,
each day which is three months after the first day of such Interest
Period and the last day of such Interest Period and (d) as to any
Competitive Advance Loan, the date or dates agreed upon by the Company
and the Lender at the time the terms of such Competitive Advance Loan are
determined as provided in Section 3.
"Interest Period": with respect to any Committed Rate Eurocurrency
Loan:
11
(i) initially, the period commencing on the borrowing,
continuation or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months thereafter, as
selected by the Company in its Notice of Borrowing, Notice of Continuation
or Notice of Conversion, as the case may be, given with respect thereto;
and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurocurrency
Loan and ending one, two, three or six months thereafter, as
selected by the Company by a Notice of Continuation with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Investment Grade": the Company shall be deemed to be Investment
Grade when its Rating is at least BBB- by Standard & Poor's Corporation
and at least Baa3 by Moody's Investors Service, Inc.
"Issuing Bank": each Lender listed as an Issuing Bank in Schedule V.
"Issuing Office": in respect of each Issuing Bank, the Issuing
Office set forth for such Issuing Bank in Schedule V.
"JPMorgan Chase": JPMorgan Chase Bank.
"Judgment Currency": as defined in subsection 12.8(b).
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit, (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to
subsection 4.5(a) and (c) Time Drafts.
"L/C Participant": in respect of each Letter of Credit, each
Lender (other than the Issuing Bank in respect of such Letter of Credit)
in its capacity as the holder of a participating interest in such
Letter of Credit.
12
"Letter of Credit": as defined in subsection 5.1.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Committed Rate Loan or Competitive Advance Loan made
by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement and each Application.
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Debt Instrument": those agreements and other instruments
of Indebtedness listed on Schedule III, which list shall include any such
instrument under which the Company is an obligor and under which the
outstanding amount and/or available commitment to extend credit
exceeds $10,000,000.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Lender": as defined in subsection 2.10(b).
"Non-Excluded Taxes": as defined in subsection 5.5(a).
"Non-U.S. Lender": as defined in subsection 5.5(b)
"Notice of Borrowing": with respect to a Loan of any Type in any
Currency, a notice from the Company in respect of such Loan, containing
the information in respect of such Loan and delivered to the Person,
in the manner and by the time specified for a
13
Notice of Borrowing in respect of such Currency and such Type of Loan
in the Administrative Schedule.
"Notice of Competitive Advance Loan": with respect to each
Competitive Advance Loan in any Currency, a notice from the Lender in
respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time specified
for a Notice of Competitive Advance Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate Loan
in any Currency, a notice from the Company in respect of such Loan,
containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of
Continuation in respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan
in Dollars which the Company wishes to convert from a Eurocurrency Loan
to an ABR Loan, or from an ABR Loan to a Eurocurrency Loan, as the case
may be, a notice from the Company setting forth the amount of such
Loan to be converted, the date of such conversion (which, in the case
of conversions of Eurocurrency Loans to ABR Loans, shall be the last day
of an Interest Period applicable to such Eurocurrency Loans) and, in the
case of conversions of ABR Loans to Eurocurrency Loans, the length of
the initial Interest Period applicable thereto. Each Notice of
Conversion shall be delivered to the Administrative Agent at its address
set forth in subsection 12.2 and shall be delivered before 11:00 A.M.,
New York City time, one Business Day before the requested conversion in
the case of conversions to ABR Loans, and before 11:00 A.M., New York
City time, three Business Days before the requested conversion in the
case of conversions to Eurocurrency Loans.
"Offered Increase Amount": as defined in subsection 2.10(a).
"Participant": as defined in subsection 12.6(b).
"Payment Office": for each Type of Loan and each Currency,
the Payment Office set forth in respect thereof in the Administrative
Schedule.
"Payment Time": for each Type of Loan and each Currency, the
Payment Time set forth in respect thereof in the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Business Acquisitions": acquisitions of all or
substantially all of the assets of, or all of the shares or other
equity interests in, a Person or division or line of business of a
Person engaged in the same business as the Company and its
Subsidiaries or in a related business if immediately after giving
effect thereto: (i) no Default or Event of Default shall have occurred
and be continuing after giving effect to such acquisition, (ii) all
transactions related thereto shall be consummated in accordance with
applicable laws, (iii) 75% of the outstanding capital stock or other
ownership interests of any acquired or newly formed corporation or
other entity must be owned directly by the Company or a
14
Restricted Subsidiary and such corporation or entity shall become a
Restricted Subsidiary hereunder, (iv) in the case of an acquisition
of Capital Stock, the board of directors (or equivalent governing body)
of the target company shall have approved such transaction, and (v) the
Company shall be in compliance, on a pro forma basis, with the covenants
contained in subsection 9.1 recomputed as at the last day of the most
recently ended fiscal quarter of the Company, and the Company shall
have delivered to the Administrative Agent an officers' certificate to
such effect, together with all relevant financial information for such
acquired corporation, entity or assets.
"Permitted Investor": Sidney Harman, Executive Chairman and
Chairman of the Board of Directors of the Company on the date hereof.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
overnmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate": the rate of interest per annum publicly announced
from time to time by JPMorgan Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced
as being effective.
"Properties": as defined in subsection 6.17.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for loans in any Available Foreign Currency,
the day on which quotations would ordinarily be given by prime banks in
the London interbank market for deposits in such Available Foreign
Currency for delivery on the first day of such Interest Period; provided,
that if quotations would ordinarily be given on more than one date, the
Quotation Day for such Interest Period shall be the last of such dates.
On the date hereof, the Quotation Day in respect of any Interest Period for
any Available Foreign Currency (other than the euro) is customarily the
last London Banking Day prior to the beginning of such Interest Period
which is (i) at least two London Banking Days prior to the beginning of
such Interest Period and (ii) a day on which banks are open for general
banking business in the city which is the principal financial center of
the country of such Available Foreign Currency; and the Quotation Day in
respect of any Interest Period for the euro is the day which is two
Target Operating Days prior to the first day of such Interest Period.
"Ratings": the actual senior unsecured non-credit enhanced debt
ratings of the Company in effect from time to time by Moody's or
Standard & Poor's Corporation, as the case may be.
"Register": as defined in subsection 12.6(d).
15
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": in respect of each Letter of Credit,
the obligation of the account party thereunder to reimburse the Issuing
Bank for all drawings made thereunder in accordance with Section 5 and
the Application related to such Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any material law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president,
or the chief financial officer of the Company.
"Restricted Subsidiary": any Subsidiary listed in Schedule IV.
"Sale and Lease-Back Transaction": as defined in subsection 9.10.
"Schedule Amendment": each Schedule Amendment, substantially in
the form of Exhibit A, executed and delivered pursuant to subsection 12.1.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Special Non-Cash Charge": any non-cash, non recurring
restructuring charges in accordance with GAAP and non-cash charges
relating to the implementation of Financial Accounting Standard
Board No. 142 Goodwill and Other Intangible Assets.
"Standby Letter of Credit": as defined in subsection 4.1(b).
"Statutory Reserve Rate": a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate,
for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to three months and (b) with respect
to the Adjusted Eurocurrency Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board).
Such reserve percentages shall include those imposed
16
pursuant to such Regulation D. Eurocurrency Loans shall be deemed
to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt": any unsecured Indebtedness of the Company
(other than Indebtedness outstanding on the date hereof and described on
Schedule 9.2) no part of the principal of which is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption or
mandatory prepayment or otherwise) prior to the Termination Date, and
the payment of the principal of and interest on which and any other
obligations of the Company in respect thereof is subordinated to the
prior payment in full of the principal of and interest (including
post-petition interest) on the Loans and all other Company Obligations
hereunder on terms and conditions that are reasonably acceptable to the
Majority Lenders.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined
by the Administrative Agent).
"Termination Date": August 14, 2005.
"Three-Month Secondary CD Rate": for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line
of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or,
if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on such
day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Time Draft": as defined in subsection 4.9.
17
"Tranche": the collective reference to Committed Rate Eurocurrency
Loans in any Currency the then current Interest Periods with respect
to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on
the same day).
"Transferee": as defined in subsection 12.6(f).
"Type": in respect of any Loan, its character as a Committed
Rate Loan or Competitive Advance Loan, as the case may be.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended, supplemented
or otherwise modified from time to time.
"Value": with respect to a Sale and Lease-Back Transaction,
as of any particular time, the amount equal to the greater of
(i) the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction or
(ii) the fair market value of such property at the time of entering
into such Sale and Lease-Back Transaction, in either case,
divided first by the number of full years of the term of the lease
and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
"Voting Stock": stock of the class or classes pursuant to
which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of
Directors of the Company (irrespective of whether or not at the
time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references
are to this Agreement unless otherwise specified. References to
Schedules to this Agreement are references to such Schedules as the
same may from time to time be amended or otherwise modified in
accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
18
SECTION 2. THE COMMITTED RATE LOANS
2.1. Committed Rate Loans. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make loans on a
revolving credit basis ("Committed Rate Loans") to the Company from
time to time during the Commitment Period; provided, that no Committed
Rate Loan shall be made if, after giving effect to the making of such
Loan and the simultaneous application of the proceeds thereof, the amount
of the Exposure would exceed the aggregate amount of the Commitments.
During the Commitment Period the Company may use the Commitments
by borrowing, prepaying the Committed Rate Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be made in Dollars or any
Available Foreign Currency and may from time to time be (i) Committed
Rate Eurocurrency Loans, (ii) in the case of Committed Rate Loans in
Dollars only, Committed Rate ABR Loans or (iii) a combination thereof,
as determined by the Company and set forth in the Notice of Borrowing
or Notice of Conversion with respect thereto; provided, that no
Committed Rate Eurocurrency Loan shall be made after the day that is
one month prior to the Termination Date.
2.2. Procedure for Committed Rate Loan Borrowing. The
Company may request the Lenders to make Committed Rate Loans on any
Business Day during the Commitment Period by delivering a Notice of
Borrowing. Each borrowing of Committed Rate Loans shall be in an amount
equal to (a) in the case of ABR Loans, $1,000,000 or a whole multiple
thereof (or, if the then aggregate undrawn amount of the Commitments
is less than $1,000,000, such lesser amount) and (b) in the case of
Eurocurrency Loans, (i) if in Dollars, $2,000,000 or increments of
$500,000 thereafter, and (ii) if in any Available Foreign Currency,
an amount in such Available Foreign Currency of which the Dollar
Equivalent Amount is at least $2,000,000. Upon receipt of any such
Notice of Borrowing from the Company, the Administrative Agent shall
promptly notify each Lender thereof. Subject to the terms and conditions
hereof, each Lender will make the amount of its pro rata share of each
such borrowing available to the Administrative Agent for the account
of the Company at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available to
the Administrative Agent. Such borrowing will then be made available
to the Company at the Funding Office, in like funds as received by
the Administrative Agent.
2.3. Repayment of Committed Rate Loans; Evidence of Debt.
(a) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the Termination
Date (or such earlier date on which the Loans become due and payable
pursuant to Section 10), the then unpaid principal amount of each
Committed Rate Loan made by such Lender. The Company hereby further
agrees to pay interest on the unpaid principal amount of the
Committed Rate Loans made to the Company from time to time
outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 2.8.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Company to such Lender resulting from each Committed Rate Loan
of such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
under this Agreement.
19
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 12.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Committed
Rate Loan made hereunder and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from the Company to each Lender under the
Committed Rate Loans and (iii) the amount of any sum received by the
Administrative Agent from the Company in respect of Committed Rate Loans,
and the amount of each Lender's share thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 2.3(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Company therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation
of the Company to repay (with applicable interest) the Committed Rate
Loans made to the Company by such Lender in accordance with the terms
of this Agreement.
2.4. Termination or Reduction of Commitments. The Company
shall have the right, upon not less than four Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time
to time, to reduce the amount of the Commitments. Any such reduction
shall be in an amount equal to $5,000,000 or a whole multiple thereof
and shall reduce permanently the Commitments then in effect.
2.5. Optional Prepayments. The Company may, at any time
and from time to time, prepay the Committed Rate Loans made to the
Company, in whole or in part, without premium or penalty, upon at
least four Business Days' irrevocable notice to the Administrative
Agent, specifying the date and amount of prepayment, the Currency
of the Committed Rate Loans to be prepaid and whether the prepayment
is of Eurocurrency Loans, ABR Loans (in the case of Committed Rate
Loans in Dollars) or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 5.6. Partial prepayments shall
be in an aggregate principal amount of at least $1,000.000.
2.6. Conversion and Continuation Options. (a) By giving
a Notice of Conversion, the Company may elect from time to time (i) to
convert the Company's Eurocurrency Loans in Dollars to ABR Loans or
(ii) to convert the Company's ABR Loans to Eurocurrency Loans in
Dollars; provided, that any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto.
Upon receipt of any Notice of Conversion the Administrative Agent shall
promptly notify each Lender thereof. All or any part of Eurocurrency
Loans outstanding in Dollars or ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a
Eurocurrency Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Eurocurrency Loan after
the date that is one month prior to the Termination Date.
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(b) By giving a Notice of Continuation, the Company may
continue any of its Eurocurrency Loans as Eurocurrency Loans in the
same Currency for additional Interest Periods.
(c) The Company may convert Committed Rate Loans
outstanding in one Currency to Committed Rate Loans of a different
Currency by repaying such Loans in the first Currency and
borrowing Loans of such different Currency in accordance with the
applicable provisions of this Agreement.
(d) If the Company shall fail to timely give a Notice
of Continuation or a Notice of Conversion in respect of any of the
Company's Eurocurrency Loans with respect to which an Interest
Period is expiring, such Eurocurrency Loans shall become due and
payable on the last day of such expiring Interest Period; provided,
that the Company may, in accordance with and subject to the terms
and conditions of this Agreement refinance such maturing
Eurocurrency Loans on such maturity date with Competitive
Advance Loans.
2.7. Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Committed Rate Loans and all
selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Loans comprising (i) each Tranche
in Dollars shall be not less than $2,000,000 and (ii) each Tranche
in any Available Foreign Currency shall be not less than the Dollar
Equivalent Amount in such Currency of $2,000,000.
2.8. Interest Rates and Payment Dates for Committed
Rate Loans. (a) Each Committed Rate Eurocurrency Loan shall bear
interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate for
such Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a
rate per annum equal to the ABR.
(c) If all or a portion of (i) the principal amount of any
Committed Rate Loan or (ii) any interest payable thereon shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per
annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue
interest, the rate described in paragraph (b) of this subsection
plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable
in arrears on each Interest Payment Date; provided, that interest
accruing pursuant to paragraph (c) of this subsection shall be
payable from time to time on demand.
2.9. Inability to Determine Interest Rate. If on or
prior to the Quotation Day for any Interest Period in respect of
any Eurocurrency Loan in any Currency:
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(a) the Administrative Agent shall have determined
which determination shall be conclusive absent manifest error)
that, by reason of circumstances affecting the relevant market
generally, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such affected Currency
or such affected Interest Period, or
(b) the Administrative Agent shall have received notice
from Lenders having Commitments comprising at least 25% of the
aggregate amount of the Commitments that the Eurocurrency Rate
determined or to be determined for such affected Interest Period
will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Committed Rate Loans during such affected Interest
Period,
the Administrative Agent shall give telecopy or telephonic notice thereof
to the Company and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurocurrency Loans requested to be made in such
affected Currency on the first day of such affected Interest Period shall be
made as ABR Loans in Dollars in a Dollar Equivalent Amount, (y)any Committed
Rate Loans that were to have been converted on the first day of such affected
Interest Period from ABR Loans, to Eurocurrency Loans in such affected
Currency, shall be continued as ABR Loans and (z) any Eurocurrency Loans in
such affected Currency that were to have been continued as such shall be
converted, on the first day of such Interest Period, to ABR Loans in Dollars
in a Dollar Equivalent Amount. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans in such affected
Currency shall be made or continued as such.
2.10. Commitment Increases. (a) In the event that the Company
wishes to increase the total Commitment at any time when no Default or Event
of Default has occurred and is continuing, it shall notify the Administrative
Agent in writing of the amount (the "Offered Increase Amount") of such
proposed increase (such notice, a "Commitment Increase Notice") in a
minimum amount equal to $5,000,000. The Company may, at its election, (i)
offer one or more of the Lenders the opportunity to provide all or a portion
of the Offered Increase Amount pursuant to paragraph (c) below and/or (ii)
with the consent of the Administrative Agent and each Issuing Bank (each
such consent shall not be unreasonably withheld), offer one or more
additional banks, financial institutions or other entities the opportunity
to provide all or a portion of the Offered Increase Amount pursuant to
paragraph (b) below. The Commitment Increase Notice shall specify which
Lenders and/or banks, financial institutions or other entities the Company
desires to provide such Offered Increase Amount. The Company or, if requested
by the Company, the Administrative Agent will notify such Lenders,
and/or banks, financial institutions or other entities of such offer.
(b) Any additional bank, financial institution or other entity
which the Company selects to offer participation in the increased Commitments
and which elects to become a party to this Agreement and obtain a Commitment
in an amount so offered and accepted by it pursuant to Section 2.10(a)(ii)
shall execute a New Lender Supplement with the Company and the Administrative
Agent, substantially in the form of Exhibit E, whereupon such bank, financial
institution or other entity (herein called a "New Lender") shall become a
Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement,
provided that the Commitment of any such New Lender shall be in an amount not
less than $5,000,000.
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(c) Any Lender which accepts an offer to it by the Company
to increase its Commitment pursuant to Section 2.10(a)(i) shall, in each
case, execute a Commitment Increase Supplement with the Company, the Issuing
Bank and the Administrative Agent, substantially in the form of Exhibit F,
whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased.
(d) If any bank, financial institution or other entity
becomes a New Lender pursuant to Section 2.10(b) or any Lender's
Commitment is increased pursuant to Section 2.10(c), additional
Commitment Rate Loans made on or after the effectiveness thereof (the
"Credit Re-Allocation Date") shall be made pro rata based on the
Commitment Percentages in effect on and after such Credit
Re-Allocation Date (except to the extent that any such pro rata
borrowings would result in any Lender making an aggregate principal
amount of Committed Rate Loans in excess of its Commitment, in which
case such excess amount will be allocated to, and made by, such New
Lenders and/or Lenders with such increased Commitments to the extent
of, and pro rata based upon, their respective Commitments otherwise
available for Loans), and continuations of Eurocurrency Loans
outstanding on such Credit Re-Allocation Date shall be effected by
repayment of such Eurocurrency Loans on the last day of the Interest
Period applicable thereto and the making of new Eurocurrency Loans
pro rata based on such new Commitment Percentages. In the event
that on any such Credit Re-Allocation Date there is an unpaid
principal amount of ABR Loans, the Company shall make prepayments
thereof and borrowings of ABR Loans so that, after giving effect
thereto, the ABR Loans outstanding are held pro rata based on such
new Commitment Percentages. In the event that on any such Revolving
Credit Re-Allocation Date there is an unpaid principal amount of
Eurocurrency Loans, such Eurocurrency Loans shall remain outstanding
with the respective holders thereof until the expiration of their
respective Interest Periods (unless the Company elects to prepay any
thereof in accordance with the applicable provisions of this
Agreement), and interest on and repayments of such Eurodollar Loans will
be paid thereon to the respective Lenders holding such Eurocurrency Loans
pro rata based on the respective principal amounts thereof outstanding.
(e) Notwithstanding anything to the contrary in this
Section 2.10, (i) in no event shall any transaction effected pursuant to
this Section 2.10 cause the total Commitments to exceed $150,000,000,
(ii) in no event may the Company deliver more than one Commitment
Increase Notice and (iii) no Lender shall have any obligation to
increase its Commitment unless it agrees to do so in its sole discretion.
(f) It shall be a condition precedent to an increase in the
Commitments pursuant to this Section 2.10 that the Administrative Agent
shall have received on or prior to the Credit Re-Allocation Date,
for the benefit of the Lenders, (i) legal opinions of counsel to the
Company covering such matters as are customary for transactions of
this type and such other matters as may be reasonably requested by the
Administrative Agent and (ii) certified copies of resolutions of the
Company authorizing the Offered Increase Amount.
(g) The Administrative Agent will notify all Lenders of
each increase in Commitments pursuant to this Section.
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SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1. Competitive Advance Loans. (a) Subject to the terms
and conditions hereof, the Company may, from time to time during the
Commitment Period, request one or more Lenders to offer bids, and any
such Lender may, in its sole discretion, offer such bids, to make
competitive advance loans ("Competitive Advance Loans") to the Company
on the terms and conditions set forth in such bids. Each Competitive
Advance Loan shall bear interest at the rates, payable on the dates,
and shall mature on the date, agreed between the Company and Lender at
the time such Competitive Advance Loan is made; provided, that (i) each
Competitive Advance Loan shall mature not earlier than 1 day and not
later than 180 days, after the date such Competitive Advance Loan is
made and (ii) no Competitive Advance Loan shall mature after the
Termination Date. During the Commitment Period the Company may accept
bids from Lenders from time to time for Competitive Advance Loans, and
borrow and repay Competitive Advance Loans, all in accordance with
the terms and conditions hereof; provided, that no Competitive Advance
Loan shall be made if, after giving effect to the making of such Loan and
the simultaneous application of the proceeds thereof, the aggregate amount
of the Exposure would exceed the aggregate amount of the Commitments;
and provided further that the aggregate amount of Competitive Advance
Loans of the Company at any time outstanding shall not exceed
$25,000,000. Subject to the foregoing, any Lender may, in its sole
discretion, make Competitive Advance Loans in an aggregate outstanding
amount exceeding the amount of such Lender's Commitment.
(b) The Competitive Advance Loans may be made in Dollars
or any Available Foreign Currency, as agreed between the Company and
Lender in respect thereof at the time such Competitive Advance
Loan is made.
3.2. Procedure for Competitive Advance Loan Borrowing.
(a) The Company may request one or more Lenders to make bids to make
Committed Rate Loans in such manner and at such time as shall be
agreed by the Company and such Lenders. The proceeds of each
Competitive Advance Loan will be made available to the Company in
respect thereof in the manner agreed between the Company and the
relevant Lender at the time such Competitive Advance Loan is made.
(b) Each Lender that makes a Competitive Advance Loan
shall deliver a Notice of Competitive Advance Loan to the
Administrative Agent on the Thursday (or, if such Thursday is
not a Business Day, on the next Business Day following such Thursday)
immediately following the making of such Competitive Advance Loan.
3.3. Repayment of Competitive Advance Loans; Evidence of
Debt. (a) The Company hereby unconditionally promises to pay to the
Lender that made such Competitive Advance Loan on the maturity date, as
agreed by the Company and Lender at the time such Competitive Advance
Loan is made (or such earlier date on which all the Loans become due and
payable pursuant to Section 10), the then unpaid principal amount of such
Competitive Advance Loan. The Company hereby further agrees to pay
interest on the unpaid principal amount of the Competitive Advance
Loans made by any Lender from time to time outstanding from the date
thereof until payment in full thereof at the rate per annum, and on the
dates, agreed by the Company and Lender at the time such Competitive
Advance Loan is made. All payments in respect of Competitive Advance
Loans shall be made by the Company to its Competitive Advance Loan
Lender at the address separately agreed to between the Company and
such Competitive Advance Loan Lender.
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(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company
to such Lender resulting from each Competitive Advance Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time in respect
of Competitive Advance Loans. The entries made in the accounts of
each Lender maintained pursuant to this subsection 3.3(b) shall,
to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of the Company
therein recorded, absent manifest error; provided, however, that the
failure of any Lender to maintain any such account, or any error
therein, shall not in any manner affect the obligation of the
Company to repay (with applicable interest) the Competitive Advance
Loans made to the Company by such Lender in accordance with the
terms of this Agreement.
3.4. Prepayments. Unless otherwise agreed by the Lender
making a Competitive Advance Loan, such Competitive Advance Loan
may not be optionally prepaid prior to the scheduled maturity date
thereof.
SECTION 4. THE LETTERS OF CREDIT
4.1. L/C Commitment. (a) Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue letters of credit
(including Letters of Credit payable by acceptance of a Time Draft as
described in subsection 4.9) ("Letters of Credit", which shall include
the letters of credit issued by JP Morgan Chase Bank on August 8, 2002
in the amount of $7,298,767.12 and on August 13, 2002 in the amount of
$3,600,000.00) for the account of the Company on any Business Day during
the Commitment Period in such form as shall be reasonably acceptable
to such Issuing Bank; provided, that no Letter of Credit shall be issued
if, after giving effect thereto (i) the aggregate amount of the Exposure
would exceed the aggregate amount of the Commitments or (ii) the
aggregate amount of the L/C Obligations would exceed $25,000,000.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars or an Available Foreign
Currency and shall be either (A) a standby letter of credit issued
to support obligations of the Company, contingent or otherwise, to
provide credit support for workers' compensation, other insurance
programs and other lawful corporate purposes (a "Standby Letter of
Credit") or (B) a commercial letter of credit issued in respect of
the purchase of goods and services in the ordinary course of
business of the Company and its Subsidiaries (a "Commercial Letter
of Credit"; together with the Standby Letters of Credit, the
"Letters of Credit") and,
(ii) expire no later than the earlier of (A) one year after
its date of issuance and (B) 5 Business Days prior to the Termination
Date; provided that any Letter of Credit with a one-year tenor may
provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in clause
(B) above).
(c) No Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Bank or any Lender to exceed any limits imposed by, any
applicable Requirement of Law.
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4.2. Procedure for Issuance of Letters of Credit under this
Agreement. The Company may from time to time request that an Issuing Bank
issue a Letter of Credit by delivering to such Issuing Bank at its Issuing
Office an Application therefor, completed to the satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information
as such Issuing Bank may reasonably request. Upon receipt by an Issuing Bank
of any Application, such Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
any Issuing Bank be required to issue any Letter of Credit earlier than five
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed by such Issuing Bank and the Company. Such Issuing
Bank shall promptly (and in no event later than the Business Day following its
issuance of any Letter of Credit) advise the Administrative Agent of the terms
of such Letter of Credit (or provide the Administrative Agent with a copy of
such Letter of Credit), and each Lender shall be entitled to receive from the
Administrative Agent, following such Lender's request therefor, any materials
so provided to the Administrative Agent.
4.3. Fees, Commissions and Other Charges. (a) The Company shall
pay to the Administrative Agent, for the account of the Lenders (including the
Issuing Bank) pro rata according to their Commitment Percentages, a letter of
credit commission with respect to each Letter of Credit, computed at a rate
equal to the then Applicable Margin for Eurocurrency Loans on the daily
average undrawn face amount of such Letter of Credit. Such commissions shall
be payable in arrears on the last Business Day of each March, June, September
and December to occur after the date of issuance of each Letter of Credit and
on the expiration date of such Letter of Credit and shall be nonrefundable.
In addition to the foregoing fees, the Company shall pay to each Issuing Bank
for its own account a fronting fee of 0.125% per annum on the aggregate
drawable amount of all outstanding Letters of Credit issued by such Issuing
Bank. Such fronting fees shall be paid quarterly in arrears and shall be
nonrefundable.
(b) In addition to the foregoing fees and commissions, the Company
shall pay or reimburse the relevant Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by such Issuing Bank in issuing,
effecting payment under, amending or otherwise administering such Letter of
Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the Lenders all fees
and commissions received by the Administrative Agent for their
respective accounts pursuant to this subsection.
4.4. L/C Participations. (a) Each Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce
the Issuing Bank to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts
and purchases from such Issuing Bank, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and risk, an
undivided interest equal to such L/C Participant's Commitment Percentage
in such Issuing Bank's obligations and rights under each Letter of
Credit issued by such Issuing Bank hereunder and the amount of each
draft paid by such Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Bank that,
26
if a draft is paid under any Letter of Credit issued by such Issuing Bank for
which such Issuing Bank is not reimbursed in full by the Company which is the
account party thereunder in accordance with the terms of this Agreement, such
L/C Participant shall pay to such Issuing Bank upon demand at such Issuing
Bank's Issuing Office an amount equal to such L/C Participant's Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant to any
Issuing Bank pursuant to subsection 4.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit
is not paid to such Issuing Bank on the date such payment is due from such
L/C Participant, such L/C Participant shall pay to such Issuing Bank on demand
an amount equal to the product of (i) such amount, times (ii) (A) in the case
of any such payment obligation denominated in Dollars, the daily average
Federal funds rate, as quoted by such Issuing Bank, or (B) in the case of any
such payment obligation denominated in an Available Foreign Currency, the
rate customary in such Currency for settlement of similar inter-bank
obligations, as quoted by such Issuing Bank, in each case during the period
from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Bank, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of an Issuing Bank
submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 4.4(a) the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the account party or otherwise, including by way of set-off or proceeds
of collateral applied thereto by such Issuing Bank), or any payment of interest
on account thereof, such Issuing Bank will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to such Issuing Bank the
portion thereof previously distributed by such Issuing Bank to it.
4.5. Reimbursement Obligation of the Company. (a) The Company
agrees to reimburse the Issuing Bank in respect of such Letter of Credit on
the same Business Day on which such Issuing Bank notifies the Company of the
date and amount of a draft presented under such Letter of Credit and paid by
such Issuing Bank for the amount of (i) such draft so paid and (ii) any taxes,
fees, charges or other costs or expenses incurred by such Issuing Bank in
connection with such payment. Each such payment shall be made to such Issuing
Bank at its Issuing Office in the Currency in which payment of such draft was
made and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Company under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which is (i) in the case of such amounts payable
in Dollars, 2% above the ABR from time to time and (ii) in the case of such
amounts payable in any other currency, 2% above the rate reasonably determined
by the Issuing Bank as the cost of funding such overdue amount from time to
time on an overnight basis.
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4.6. Obligations Absolute. (a) The obligations of the Company
under this Section 4 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the Issuing Bank or
any beneficiary of a Letter of Credit.
(b) The Company also agrees with the Issuing Bank in respect of
such Letter of Credit that such Issuing Bank shall not be responsible for,
and the Company's Reimbursement Obligations under subsection 4.5(a) shall
not be affected by, among other things, (i) the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, provided, that reliance
upon such documents by such Issuing Bank shall not have constituted gross
negligence or willful misconduct of such Issuing Bank or (ii) any dispute
between or among the Company and any beneficiary of any Letter of Credit or
any other party to which such Letter of Credit may be transferred or (iii)
any claims whatsoever of the Company against any beneficiary of such Letter
of Credit or any such transferee.
(c) The Issuing Banks shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by such Issuing Bank's gross negligence or
willful misconduct.
(d) The Company agrees that any action taken or omitted by any
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
Uniform Customs, shall be binding on the Company and shall not result in any
liability of such Issuing Bank to the Company.
4.7. Letter of Credit Payments. If any draft shall be presented
for payment to an Issuing Bank under any Letter of Credit, such Issuing Bank
shall promptly notify the account party of the date and amount thereof. The
responsibility of the Issuing Bank to the account party in connection with
any draft presented for payment under any Letter of Credit shall, in addition
to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
4.8. Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 4, the provisions of this Section 4 shall apply.
4.9. Issuance of Letters of Credit Priority for Acceptance of
Time Drafts. Notwithstanding anything to the contrary contained in this
Section 4, the Company may request that any Letter of Credit permit drawings
thereunder to be by means of acceptance by the Issuing Bank of a time draft
(a "Time Draft") rather than by payment of a sight draft. Each Time Draft
shall (in addition to satisfying all of the provisions set forth in this
Section 4, except to the extent such provisions conflict with the provisions
in this subsection 4.9 (in which case this subsection 4.9 shall be
controlling)) expire no later than the earliest of (i) 90 days following the
acceptance of such Time Draft by the related Issuing Bank, (ii) 5 Business Days
prior to the Termination Date and (iii) 180 days after the issuance of the
Commercial Letter of Credit pursuant to which such Time Draft is made.
Notwithstanding anything to the contrary in this Agreement:
28
(a) in calculating the outstanding amount of L/C Obligations for
purpose of determining the amount of the Commitments available for usage
as Letters of Credit under subsection 4.1(a), the face amount of each
outstanding and accepted Time Draft shall be deemed to constitute L/C
Obligations;
(b) in calculating the undrawn face amount of any Letter of Credit
for purposes of determining the amount of Letter of Credit commission
payable pursuant to subsection 4.3(a), each Letter of Credit under which
a Time Draft has been issued and accepted shall be deemed undrawn to the
extent of the face amount of such Time Draft until such Time Draft has
been paid; and
(c) each L/C Participant shall be deemed to have an undivided
interest equal to such L/C Participant's Commitment Percentage in the
Issuing Bank's rights and obligations under any Time Draft accepted by
such Issuing Bank under any Letter of Credit.
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT
5.1. Facility Fee. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for the
period from and including the Closing Date to, but excluding, the later of the
Termination Date or the date on which the Company Obligations are paid in full,
computed at the Facility Fee Rate in effect from time to time on the average
daily amount of the Commitment (used and unused) of such Lender during the
period for which payment is made (or after the Termination Date on the average
daily amount of the Exposure), payable quarterly in arrears on the last day of
each March, June, September and December and on the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein and
thereafter upon demand, commencing on the first of such dates to occur after
the date hereof.
(b) The Company agrees to pay to the Administrative Agent, for its
own account, the administrative agent's fee, to the Administrative Agent, for
the account of the Lenders, the upfront fee, and to JPMorgan Chase, for its
own account, such other fees, in the amounts and on the dates set forth in the
Fee Letter.
5.2. Computation of Interest and Fees. (a) Facility fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest and Letter of Credit
commissions shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify
the Company and the Lenders of each determination of a Eurocurrency Rate.
Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively. The Administrative Agent shall as soon as practicable notify
the Company and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error.
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5.3. Pro Rata Treatment and Payments. (a) Each borrowing by the
Company of Committed Rate Loans, each payment by the Company on account of any
facility fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of
the Lenders. Each payment (including each prepayment) by the Company on
account of principal of and interest on any Loans shall be made pro rata
according to the respective principal amounts of the Loans of the Company then
due and owing to the Lenders. All payments (including prepayments) to be made
by the Company hereunder, whether on account of principal, interest, fees,
Reimbursement Obligations or otherwise, shall be made without set off or
counterclaim. All payments in respect of Committed Rate Loans in any Currency
shall be made in such Currency and in immediately available funds at the
Payment Office, and at or prior to the Payment Time, for such Type of Loans
and such Currency, on the due date thereof. The Administrative Agent shall
distribute to the Lenders any payments received by the Administrative Agent
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date in respect of Committed Rate
Loans that such Lender will not make the amount that would constitute its
Commitment Percentage of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon at a rate equal to (A) in the case of any such
Committed Rate Loans denominated in Dollars, the daily average Federal funds
rate, as quoted by the Administrative Agent, or (B) in the case of any
Committed Rate Loans denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations,
as quoted by the Administrative Agent, in each case for the period until
such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error. If such Lender's Commitment Percentage
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon
at the rate per annum applicable to Committed Rate Loans in such Currency
hereunder, on demand, from the Company.
5.4. Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) applicable generally in the
jurisdiction of such Lender to banking institutions of the same type as such
Lender:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Eurocurrency Loan made by it to the
Company or any Extension of Credit to the Company, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 6.6 and changes in the rate or
other basis of tax on the overall net income of such Lender);
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(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition affecting
Eurocurrency Loans made by such Lender to the Company, or Extensions of
Credit by such Lender to the Company;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans or making
or maintaining Extensions of Credit to the Company or to reduce any amount
receivable hereunder in respect thereof, and such Lender has no reasonable
means (as it shall determine in its sole discretion) to avoid such costs or
reductions, then, in any such case, the Company shall promptly pay such
Lender following receipt of a certificate of such Lender in accordance
with subsection 5.4(d) such additional amount or amounts as will compensate
such Lender for such increased cost or reduction suffered.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the Company
shall promptly pay to such Lender following receipt of a certificate of
such Lender in accordance with subsection 5.4(d) such additional amount or
amounts as will compensate such Lender for any such reduction suffered.
Notwithstanding any other provision in this paragraph (b), no Lender
shall be entitled to demand compensation pursuant to this paragraph (b)
if it shall not then be the general practice of such Lender to demand such
compensation in similar circumstances under comparable provisions of other
comparable credit agreements.
(c) In addition to, and without duplication of, amounts which may
become payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 5.4, the Company agrees to pay to each Lender which requests
compensation under this paragraph (c) by notice to the Company, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Lender to the Company, at any time when such Lender shall
be required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Lender may be required
by the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Lender which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Lender's calculation or, if an accurate calculation is
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impracticable, reasonable estimate using such reasonable means of allocation
as such Lender shall determine) equal to the actual costs, if any, incurred
by such Lender during such Interest Period as a result of the applicability
of the foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a), (b) or (c) above, as the case may be, and setting forth in
reasonable detail an explanation of the basis of requesting such compensation
in accordance with paragraph (a) or (b) above, including calculations in
detail comparable to the detail set forth in Certificates delivered to such
Lender in similar circumstances under comparable provisions of other
comparable credit agreements, shall be delivered to the Company and shall
be conclusive absent manifest error. The Company shall pay each Lender the
amount shown as due on any such certificate delivered to it within 10 days
after its receipt of the same.
(e) Failure on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute
a waiver of such Lender's right to demand compensation with respect to such
period or any other period, except that no Lender shall be entitled to
compensation under this subsection 5.4 for any costs incurred or reduction
suffered with respect to any date unless such Lender shall have notified the
Company that it will demand compensation for such costs or reductions under
paragraph (d) above, not more than six months after the later of (i) such date
and (ii) the date on which such Lender as applicable, shall have become aware
of such costs or reductions. The protection of this subsection 6.5 shall be
available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition that shall have occurred or been imposed.
(f) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
5.5. Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes
and franchise taxes and other similar taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof
or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement)
provided, however, that the Lender shall have complied with the relevant
provisions of this subsection 5.5. If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes")are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder
32
at the rates or in the amounts specified in this Agreement. Whenever any
Non-Excluded Taxes are payable by the Company, as promptly as possible
thereafter the Company shall timely pay such Non-Excluded Taxes and shall send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Company showing payment thereof. If the Company fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. Notwithstanding the foregoing, the Company shall be required to make
any payments in respect of Non-Excluded Taxes to any Lender that has changed
the Funding Office at which it maintains the Extensions of Credit to which
such Non-Excluded Taxes relate (other than any such change in Funding Office
made by such Lender pursuant to subsection 5.7 to avoid or minimize the
application or effects of subsection 5.4 or 5.5) in an amount greater than
the Company would have been required to pay pursuant to this subsection 5.5
if no such change in Funding Office had occurred. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated, created or organized
under the laws of the United States of America or a state or political
subdivision thereof (a "Non-U.S. Lender") shall:
(i) deliver to the Company and the Administrative Agent (A) two
duly completed copies of either United States Internal Revenue Service
Form W-8BEN (with respect to entitlement to treaty benefits) or W-8ECI,
or successor applicable form, as applicable, and (B) in the case of a
Non-U.S. Lender claiming exemption from U.S. Federal withholdings tax
under Section 871(b) or 881(c) of the Code with respect to payments of
"portfolio interests," a statement substantially in the form of Exhibit G
and a Form W-8BEN, or applicable successor form, in each case,
demonstrating such Non-U.S. Lender's entitlement to a complete exemption
from U.S. Federal withholding tax on all payments by the Company under
this Agreement,
(ii) deliver to the Company and the Administrative Agent two
further current copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Administrative Agent;
unless in any such case an event (including, without limit |
