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Sample Business ContractsHome: Sample Business Contracts:
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
June 9, 1998
among
THE NEW DUN & BRADSTREET CORPORATION
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
$300,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY
================================================================================
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................24
SECTION 1.03. Terms Generally................................................24
SECTION 1.04. Accounting Terms; GAAP.........................................24
SECTION 1.05. Exchange Rates.................................................25
ARTICLE 2 THE CREDITS
SECTION 2.01. Commitments....................................................25
SECTION 2.02. Loans and Borrowings...........................................26
SECTION 2.03. Requests for Revolving Borrowings..............................27
SECTION 2.04. Competitive Bid Procedure......................................28
SECTION 2.05. Swingline Loans................................................32
SECTION 2.06. Funding of Borrowings..........................................33
SECTION 2.07. Interest Elections.............................................34
SECTION 2.08. Termination and Reduction of Commitments.......................36
SECTION 2.09. Repayment of Loans; Evidence of Debt...........................37
SECTION 2.10. Prepayment of Loans............................................38
SECTION 2.11. Fees...........................................................39
SECTION 2.12. Interest.......................................................40
SECTION 2.13. Alternate Rate of Interest.....................................41
SECTION 2.14. Increased Costs................................................42
SECTION 2.15. Break Funding Payments.........................................44
SECTION 2.16. Taxes..........................................................45
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs..........................................46
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.................48
SECTION 2.19. Borrowing Subsidiaries.........................................49
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers...........................................50
SECTION 3.02. Authorization; Enforceability..................................50
SECTION 3.03. Governmental Approvals; No Conflicts...........................50
SECTION 3.04. Financial Condition; No Material Adverse Change................51
<PAGE> 3
SECTION 3.05. Properties.....................................................52
SECTION 3.06. Litigation and Environmental Matters...........................52
SECTION 3.07. Compliance with Laws and Agreements............................53
SECTION 3.08. Investment and Holding Company Status..........................53
SECTION 3.09. Taxes..........................................................53
SECTION 3.10. ERISA..........................................................53
SECTION 3.11. Disclosure.....................................................54
SECTION 3.12. Subsidiaries...................................................54
SECTION 3.13. Use of Proceeds................................................54
SECTION 3.14. Solvency.......................................................54
SECTION 3.15. Year 2000......................................................54
ARTICLE 4 CONDITIONS
SECTION 4.01. Effective Date.................................................55
SECTION 4.02. Each Credit Event..............................................56
SECTION 4.03. Each Borrowing Subsidiary Credit Event.........................57
ARTICLE 5 AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................58
SECTION 5.02. Notices of Material Events.....................................59
SECTION 5.03. Existence; Conduct of Business.................................60
SECTION 5.04. Payment of Obligations.........................................60
SECTION 5.05. Maintenance of Properties; Insurance...........................60
SECTION 5.06. Books and Records; Inspection Rights...........................61
SECTION 5.07. Compliance with Laws...........................................61
SECTION 5.08. Use of Proceeds................................................61
ARTICLE 6 NEGATIVE COVENANTS
SECTION 6.01. Liens..........................................................61
SECTION 6.02. Fundamental Changes............................................63
SECTION 6.03. Transactions with Affiliates...................................64
SECTION 6.04. Sale and Lease-Back Transactions...............................65
SECTION 6.05. Total Debt to EBITDA Ratio.....................................65
SECTION 6.06. Interest Coverage Ratio........................................65
ARTICLE 7 EVENTS OF DEFAULT
<PAGE> 4
ARTICLE 8 THE ADMINISTRATIVE AGENT
ARTICLE 9 GUARANTEE
ARTICLE 10 MISCELLANEOUS
SECTION 10.01. Notices.......................................................73
SECTION 10.02. Waivers; Amendments...........................................74
SECTION 10.03. Expenses; Indemnity; Damage Waiver............................75
SECTION 10.04. Successors and Assigns........................................76
SECTION 10.05. Survival......................................................80
SECTION 10.06. Counterparts; Integration; Effectiveness......................81
SECTION 10.07. Severability..................................................81
SECTION 10.08. Right of Setoff...............................................81
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process.....................................................82
SECTION 10.10. Waiver of Jury Trial..........................................82
SECTION 10.11. Headings......................................................83
SECTION 10.12. Confidentiality...............................................83
SECTION 10.13. Interest Rate Limitation......................................83
SECTION 10.14. Conversion of Currencies......................................84
SECTION 10.15. European Economic and Monetary Union..........................84
<PAGE> 5
SCHEDULES:
Schedule 2.01(a) -- Lenders and Facility Commitments
Schedule 2.01(b) -- Designated Currency Lenders and Designated Currency
Commitments
Schedule 2.01(c) -- Yen Lenders and Yen Commitments
Schedule 2.17 -- Payments on Multicurrency Loans
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Company's Counsel
Exhibit B-2 -- Form of Opinion of Simpson Thacher & Bartlett
Exhibit C -- Form of Opinion of Borrowing Subsidiary's Counsel
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
Exhibit F -- Form of Statement Relating to Tax Status
iv
<PAGE> 6
CREDIT AGREEMENT dated as of June 9, 1998, among THE NEW DUN & BRADSTREET
CORPORATION, the BORROWING SUBSIDIARIES party hereto, the LENDERS party hereto,
THE CHASE MANHATTAN BANK, as Administrative Agent, CITIBANK, N.A., as
Syndication Agent, and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acceptable Insurer" means (i) Lloyd's of London, so long as it is rated
at least 3 crowns by S&P, (ii) an insurance company having an A.M. Best rating
of "A" or better and being in a financial size category of IX or larger (as such
category is defined on the date hereof) or (iii) an insurance company otherwise
reasonably acceptable to the Administrative Agent.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. No SPC of
any Lender shall be an Affiliate of such Lender.
"Agreement Currency" has the meaning assigned to such term in Section
10.14.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
<PAGE> 7
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means, (a) with respect to a Loan or Borrowing
denominated in dollars, the Administrative Agent, (b) with respect to a Loan or
Borrowing denominated in Sterling, the London Agent, or (c) with respect to any
particular Eligible Currency, such other Person as may be agreed upon by the
Company and the Administrative Agent and designated in a notice delivered to the
Lenders.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Available Facility Commitments represented by such Lender's
Available Facility Commitment. If the Facility Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Facility
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurocurrency Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by S&P and Duff & Phelps, respectively, applicable on such date to the
LTD Index Debt or, if no LTD Index Debt is in effect, based upon the ratings by
S&P and Duff & Phelps, respectively, applicable on such date to the CP Index
Debt:
<TABLE>
<CAPTION>
=================================================================================================================
Category 1 Category 2 Category 3 Category 4 Category 5
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
CP Rating: A-1+ and D-1+ A-1+ or D-1+ A-1 and D-1 A-2 or D-1- Lower than A-2
and lower than
D-1-
-----------------------------------------------------------------------------------------------------------------
LTD Rating: A+ and A+ A and A A- and A- BBB+ and BBB+ BBB and BBB
-----------------------------------------------------------------------------------------------------------------
Facility Fee Rate .070% .080% .090% .110% .150%
-----------------------------------------------------------------------------------------------------------------
Eurocurrency .130% .145% .160% .190% .225%
Spread
=================================================================================================================
</TABLE>
For purposes of the foregoing, (i) if either S&P or Duff & Phelps shall
not have in effect a rating for the applicable Index Debt (other than by reason
of the circumstances referred to in the last sentence of this definition), then
the Applicable Rate shall be the rate set forth in the Category that is one
number
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<PAGE> 8
higher than the Category applicable to the rating in effect; (ii) if neither S&P
nor Duff & Phelps shall have in effect a rating for any Index Debt (other than
by reason of the circumstances referred to in the last sentence of this
definition), then the Applicable Rate shall be the rate set forth in Category 5,
(iii) if the Applicable Rate is being calculated on the basis of LTD Index Debt
and if the ratings established by S&P and Duff & Phelps for the applicable LTD
Index Debt shall fall within different Categories, then the Applicable Rate
shall be based on the higher of the two ratings, unless one of the two ratings
is two or more Categories lower than the other, in which case the Applicable
Rate shall be based upon the Category next below that of the higher of the two
ratings; and (iv) if the ratings established by S&P and Duff & Phelps for the
applicable Index Debt shall be changed (other than as a result of a change in
the rating system of S&P or Duff & Phelps), such change shall be effective as of
the date on which it is first announced by the applicable rating agency. Each
change in the Applicable Rate shall apply (other than as described in the
immediately succeeding sentence) during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. Notwithstanding the foregoing, from the Effective
Date until December __, 1998, the Applicable Rate shall be based upon Category
3. If the rating system of S&P or Duff & Phelps shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Available Facility Commitment" means, with respect to any Lender at any
time, an amount equal to such Lender's Facility Commitment at such time minus
such Lender's Funded Revolving Credit Exposure at such time. If the Facility
Commitments have terminated or expired, the Available Facility Commitments shall
be determined based upon the Facility Commitments most recently in effect,
giving effect to any assignments.
"Availability Period" means with respect to the Facility Commitments, the
Designated Currency Commitments or the Yen Commitments, as the case may be, the
period from and including the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Facility Commitments, the
Designated Currency Commitments or the Yen Commitments, respectively.
3
<PAGE> 9
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and currency, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Date" means any Business Day specified in a notice pursuant to
Section 2.03, 2.04 or 2.05 as a date on which the relevant Borrower requests
Loans to be made hereunder.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated in
dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Eligible Currency, the smallest amount of such Eligible Currency that (i) is an
integral multiple of 1,000,000 units (or, in the case of Pounds Sterling,
500,000 units) of such currency and (ii) has a Dollar Equivalent in excess of
$5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing denominated in
dollars, $1,000,000 and (b) in the case of a Borrowing denominated in any
Eligible Currency, 1,000,000 units (or, in the case of Pounds Sterling, 500,000
units) of such currency.
"Borrowing Request" means a request for a Revolving Borrowing in
accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, any Subsidiary of the Company
designated as a Borrowing Subsidiary by the Company pursuant to Section 2.19
that has not ceased to be a Borrowing Subsidiary pursuant to such Section or
Article 7.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit E.
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that (i) when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
4
<PAGE> 10
open for dealings in deposits in the applicable currency in the London interbank
market and (ii) when used in connection with notices or payments to or from an
Applicable Agent, such term shall also exclude any day on which the Applicable
Agent is not open.
"Calculation Date" means the last Business Day of each calendar month and
such other Business Days during such calendar month as may be notified by the
Company to the Administrative Agent, provided that there shall be no more than
three Calculation Dates in any calendar month.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were not (i) nominated by the board of directors of the
Company, (ii) appointed in connection with the Spin-off or (iii) appointed by
directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.14(c), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Dollar
Loans, Revolving Designated Currency Loans, Revolving Yen Loans, Competitive
Loans or Swingline Loans.
5
<PAGE> 11
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Facility Commitment, a Designated Currency Commitment
or a Yen Commitment.
"Company" means The New Dun & Bradstreet Corporation, a Delaware
corporation.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids in
accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Competitive Loans
(or the Dollar Equivalent thereof in the case of a Competitive Loan in an
Eligible Currency) at such time.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"CP Index Debt" means unsecured commercial paper of the Company that is
not guaranteed by any other Person or subject to any other credit enhancement.
"D&B" means The Dun & Bradstreet Corporation, a Delaware corporation
(which will be renamed R. H. Donnelley Corporation in connection with the
Spin-off), and its successors.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Currency" means Pounds Sterling, Euros (after their adoption
by participating members of the European Union) and any other Eligible Currency
that shall be designated by the Company in a notice delivered to the
Administrative
6
<PAGE> 12
Agent and approved by the Administrative Agent and all the Designated Currency
Lenders as a Designated Currency. The Company may specify in any notice
delivered to the Administrative Agent with respect to the designation of any
Eligible Currency one or more locations from which a Borrower may make payments
of principal of or interest on any Multicurrency Loans in such Eligible
Currency. Subject to the approval of the Administrative Agent and all the
Designated Currency Lenders, Schedule 2.17 shall be deemed to have been amended
to add each such location for payments with respect to Multicurrency Loans in
such Eligible Currency (but not any other Loans).
"Designated Currency Commitment" means, with respect to each Designated
Currency Lender, the commitment of such Designated Currency Lender to make
Revolving Designated Currency Loans, expressed as an amount representing the
maximum aggregate Dollar Equivalents of the principal amounts of such Designated
Currency Lender's outstanding Revolving Designated Currency Loans that may be
outstanding after giving effect to any such Revolving Designated Currency Loans,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Designated Currency Lender pursuant to Section 10.04. The initial amount of
each Designated Currency Lender's Designated Currency Commitment is set forth on
Schedule 2.01(b), in the Assignment and Acceptance pursuant to which such
Designated Currency Lender shall have assumed its Designated Currency
Commitment, as applicable.
"Designated Currency Lenders" means the Persons listed on Schedule 2.01(b)
and any other Person that shall have become a Designated Currency Lender
pursuant to any Assignment and Acceptance, other than a Person that ceases to be
a Designated Currency Lender pursuant to an Assignment and Acceptance.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Discontinued Companies" means The Reuben H. Donnelley Corporation and
Financial Information Services, and their respective subsidiaries.
"Distribution Agreement" means the Distribution Agreement between D&B and
the Company, substantially in the form set forth as Exhibit __ to the
Information Statement, as in effect on May 22, 1998.
"dollars" or "$" refers to lawful money of the United States of America.
"Dollar Equivalent" means, on any date of determination, with respect to
any amount in any Eligible Currency, the equivalent in dollars of such amount,
7
<PAGE> 13
determined by the Administrative Agent pursuant to Section 1.05(a) using the
Exchange Rate with respect to such Eligible Currency then in effect.
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary organized
under the laws of any jurisdiction in the United States.
"Duff & Phelps" means Duff & Phelps Inc.
"EBITDA" means, for any period, the consolidated net income of the Company
and its consolidated Subsidiaries for such period plus, to the extent deducted
in computing such consolidated net income for such period, the sum (without
duplication) of (a) income tax expense, (b) Interest Expense, (c) depreciation
and amortization expense, (d) extraordinary losses, (e) non-cash charges
relating to the change in the Company's revenue recognition policy, which change
was adopted in the fourth fiscal quarter of the 1997 fiscal year, (regardless of
when such charges are recorded or recognized) in an aggregate amount not to
exceed $254,700,000, (f) losses (net of income taxes) resulting from the
operations of the Discontinued Companies (assuming that the Discontinued
Companies owned such operations during such period), but only to the extent such
operations are designated as discontinued operations and continue to be
designated as discontinued operations in the Company's financial statements and
(g) transaction costs recorded in the fiscal year 1998 as a result of the
Spin-off in an aggregate amount not to exceed $30,000,000, and minus, to the
extent added in computing such consolidated net income for such period the sum
(without duplication) of (i) interest income, (ii) extraordinary gains and (iii)
income (net of income taxes) resulting from the operations of the Discontinued
Companies (assuming that the Discontinued Companies owned such operations during
such period), but only to the extent such operations are designated as
discontinued operations and continue to be designated as discontinued operations
in the Company's financial statements.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"Eligible Currency" means at any time any Designated Currency, Yen or any
other currency (other than dollars) that is freely tradeable and exchangeable
into dollars in the London market and for which the Administrative Agent can
determine an Exchange Rate.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material.
8
<PAGE> 14
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Euro" has the meaning assigned to the term "euro" in Section 10.15(a).
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the LIBO Rate.
9
<PAGE> 15
"Event of Default" has the meaning assigned to such term in Article 7.
"Exchange Rate" means, on any day, with respect to any Eligible Currency,
the rate at which such Eligible Currency may be exchanged into dollars (and, for
purposes of any provision of this Agreement requiring or permitting the
conversion of Multicurrency Loans to dollar Loans, the rate at which dollars may
be exchanged into the applicable Eligible Currency), as set forth at or about
9:00 a.m., New York City time, or at or about 11:00 a.m., London time, on such
date on the Reuters World Currency Page for such currency. In the event that
such rate does not appear on any Reuters World Currency Page, the Exchange Rate
shall be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Applicable Agent and the
Company, or, in the absence of such agreement, such Exchange Rate shall instead
be the arithmetic average of the spot rates of exchange of the Applicable Agent
in the market where its foreign currency exchange operations in respect of such
currency are then being conducted, on or about 11:00 a.m., New York City time,
or on or about 11:00 a.m., London time, on such date for the purchase of dollars
(or such foreign currency, as the case may be) for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Applicable Agent, after consultation with
the Company, may use any reasonable method it deems appropriate to determine
such rate, and such determination shall be presumed correct absent manifest
error.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income (including branch profits or similar taxes)
imposed as a result of a present or former connection between such Lender or the
Administrative Agent and the Governmental Authority imposing such tax (other
than any such connection arising solely from such Lender or the Administrative
Agent having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) and (b) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender to the extent they are in effect and would apply as of the date such
Foreign Lender becomes a party to this Agreement or designates a new lending
office (including withholding taxes that would be imposed on payments made by a
Borrowing Subsidiary the Relevant Jurisdiction with respect to which is the
United Kingdom, regardless of whether the Company has designated such a
Borrowing Subsidiary) (other than with respect to any Foreign Lender that is a
Foreign Lender with respect to any Borrowing Subsidiary that is designated after
the date of this Agreement (other than a Borrowing Subsidiary the Relevant
Jurisdiction with respect to which is United Kingdom)), or that is attributable
to such Foreign Lender's failure to comply with Section 2.16(e), except to the
extent that such
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Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the applicable Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
"Existing Credit Agreements" means the Multi-Year Revolving Credit and
Competitive Advance Facility and the 364-Day Revolving Credit and Competitive
Advance Facility, each dated as of August 30, 1996 and among D&B, the borrowing
subsidiaries party thereto, the lenders party thereto, The Chase Manhattan Bank,
as administrative agent, Citibank, N.A., as syndication agent, and Morgan
Guaranty Trust Company of New York, as documentation agent, each as in effect
immediately prior to the Effective Date.
"Facility Commitment" means, with respect to each Lender, the commitment
of such Lender to make Revolving Loans and to acquire participations in
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Facility
Commitment is set forth on Schedule 2.01(a), or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Facility Commitment, as
applicable. The initial aggregate amount of the Facility Commitments is
$300,000,000.
"Federal Funds Effective Rate" means, for any day, 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.
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
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"Foreign Lender" means, with respect to any Loan, any Lender making such
Loan that is organized under the laws of a jurisdiction other than the Relevant
Jurisdiction.
"Funded Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum at such time, without duplication, of (a) the aggregate
principal amount at such time of the outstanding Revolving Dollar Loans of such
Lender, (b) the Dollar Equivalent of the aggregate principal amount of the
outstanding Revolving Yen Loans of such Lender, (c) the aggregate amount of the
Dollar Equivalents of the principal amounts of the outstanding Revolving
Designated Currency Loans of such Lender and (d) that portion of such Lender's
Swingline Exposure attributable to Swingline Loans in respect of which such
Lender has made (or is required to have made) payments to the Swingline Lender
pursuant to Section 2.05(c).
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor"), whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials,
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polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing unconditional right to be secured by) any Lien
on property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed (the amount of any Indebtedness resulting from
this clause (e) shall be equal to the lesser of (i) the amount secured by such
Lien and (ii) the fair market value of the property subject to such Lien as
determined in good faith by such Person), (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty issued by banks or other
financial institutions and (i) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances created for the account of such
Person. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means LTD Index Debt or CP Index Debt.
"Information Memorandum" means the Confidential Information Memorandum
dated May, 1998 relating to the Company and the Transactions.
"Information Statement" means the Information Statement of D&B and the
Company dated May __, 1998, as amended or supplemented from time to time;
provided that no such material amendment or supplement of any term thereof shall
be effective for purposes of references thereto in this Agreement unless
approved in writing by the Required Lenders.
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"Interest Coverage Ratio" means, for any period, the ratio of (a) EBITDA
for such period to (b) Interest Expense for such period. For purposes of
determining the "Interest Coverage Ratio" for any period ended prior to June 30,
1999, "Interest Expense" shall be calculated by giving effect to the Spin-off as
if it had occurred on the first day of such period.
"Interest Election Request" means a request by the relevant Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the interest expense of the
Company and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP and including (i) the amortization of
debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to Hedging
Agreements) payable in connection with the incurrence of Indebtedness to the
extent included in interest expense in accordance with GAAP, (iii) the portion
of any rents payable under capital leases allocable to interest expense in
accordance with GAAP and (iv) minority interest financing expense of D&B
Investors, L.P. and Duns Licensing Associates, L.P.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than one day or
more than 360 days) commencing on the date of such Borrowing and ending on
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<PAGE> 20
the date specified in the applicable Competitive Bid Request; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurocurrency Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest Period pertaining
to a Eurocurrency Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"IRS Ruling" has the meaning set forth in Section 4.01(h).
"Judgment Currency" has the meaning assigned to such term in Section
10.14.
"Lenders" means the Persons listed on Schedule 2.01(a) and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 (or, in the case of a
Multicurrency Borrowing, the rate appearing on the Page for the applicable
Eligible Currency) of the Dow Jones Markets Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits (or, in the case of a Multicurrency Borrowing, deposits in the
applicable Eligible Currency) in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits (or the applicable Eligible
Currency) with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which the Administrative Agent is offered dollar deposits of
$5,000,000 (or, in the case of a Multicurrency Borrowing, deposits in the
applicable Eligible Currency in an amount the Dollar Equivalent of which is
approximately equal to $5,000,000) and for a maturity
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<PAGE> 21
comparable to such Interest Period in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset of any Person, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset of any Person, for the purpose of securing any
obligation of such Person or any other Person, and (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrowers pursuant to
this Agreement.
"London Agent" means Chase Manhattan International Limited.
"LTD Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and the
Subsidiaries taken as a whole, (b) the ability of the Company to perform any of
its payment obligations under this Agreement or (c) the rights of or benefits
available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of the Company and its
Subsidiaries in an aggregate principal amount exceeding $50,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Company or any Subsidiary in respect of any Hedging Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Company or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Borrowing Subsidiary and any Subsidiary
(a) the Total Assets of which exceed 10% of the Total Assets of the Company and
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its consolidated Subsidiaries as of the end of the most recently completed
fiscal year or (b) the Net Revenue of which exceeds 10% of the Net Revenue of
the Company and its consolidated Subsidiaries as of the end of the most recently
completed fiscal year provided, that (i) any Subsidiary that directly or
indirectly owns a Material Subsidiary shall itself be a Material Subsidiary and
(ii) in the event Subsidiaries that would otherwise not be Material Subsidiaries
shall in the aggregate account for a percentage in excess of 15% of the Total
Assets or 15% of the Net Revenue, then one or more of such Subsidiaries
designated by the Company (or, if the Company shall make no designation, one or
more of such Subsidiaries in descending order based on their respective
contributions to Total Assets), shall be included as Material Subsidiaries to
the extent necessary to eliminate such excess.
"Maturity Date" means June 9, 2003 (or, if such day if not a Business Day,
the next succeeding Business Day).
"Multicurrency Borrowing" means a Borrowing comprised of Multicurrency
Loans.
"Multicurrency Loan" means a Revolving Loan denominated in Yen or in a
Designated Currency or a Competitive Loan in an Eligible Currency.
"Multicurrency Lender" means any Lender of a Multicurrency Loan.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Revenue" means, with respect to any Person for any period, the net
revenue of such Person and its consolidated subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"New D&B Assets" has the meaning set forth in the Distribution Agreement.
"Obligations" means the obligations of each of the Borrowing Subsidiaries
under this Agreement and the Borrowing Subsidiary Agreements with respect to the
payment of (i) the principal of and interest on the Loans to each such Borrowing
Subsidiary when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise and (ii) all other monetary
obligations of each of the Borrowing Subsidiaries hereunder and thereunder.
"Other Credit Agreement" means the 364-Day Revolving Credit and
Competitive Advance Facility dated as of June 9, 1998 among the Company, the
borrowing subsidiaries party thereto, the lenders party thereto, The Chase
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Manhattan Bank, as administrative agent, Citibank, N.A., as syndication agent,
and Morgan Guaranty Trust Company of New York, as documentation agent, as
amended from time to time.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means: (a) Liens imposed by law for taxes that
are not yet delinquent or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, landlords',
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04; (c) pledges and deposits
made in the ordinary course of business in compliance with workers'
compensation, unemployment insurance and other social security laws or
regulations; (d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business and deposits securing liabilities to insurance carriers under insurance
or self-insurance arrangements; and (e) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Company or
any Subsidiary; provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
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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.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any Loan to the Company
or any Domestic Borrowing Subsidiary, the United States of America, and (ii) in
the case of any Loan to any other Borrowing Subsidiary, the jurisdiction
imposing (or having the power to impose) withholding tax on payments by such
Borrowing Subsidiary under this Agreement.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article 7, and for all purposes after the Loans become due and payable pursuant
to Article 7 or the Commitments expire or terminate, the total Competitive Loan
Exposures of the Lenders shall be included in their respective Revolving Credit
Exposures in determining the Required Lenders.
"Reset Date" has the meaning set forth in Section 1.05(a).
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans (or
the Dollar Equivalent thereof, in the case of Multicurrency Loans) and its
Swingline Exposure at such time.
"Revolving Designated Currency Borrowing" means a Borrowing comprised of
Revolving Designated Currency Loans.
"Revolving Designated Currency Loans" means the Loans made pursuant to
Section 2.01(b) that are denominated in Designated Currencies.
"Revolving Dollar Borrowing" means a Borrowing comprised of Revolving
Dollar Loans.
"Revolving Dollar Loans" means Loans denominated in dollars and made
pursuant to Section 2.01(a). Each Revolving Dollar Loan shall be a Eurocurrency
Loan or an ABR Loan.
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"Revolving Loans" means Revolving Dollar Loans, Revolving Yen Loans and
Revolving Designated Currency Loans.
"Revolving Yen Borrowing" means a Borrowing comprised of Revolving Yen
Loans.
"Revolving Yen Loans" means the Loans made pursuant to Section 2.01(c)
that are denominated in Yen.
"S&P" means Standard & Poor's.
"SPC" has the meaning set forth in Section 10.04(h).
"Spin-off" means all of the transactions contemplated by the Information
Statement and Article 2 of the Distribution Agreement to be consummated on or
prior to the Distribution Date (as defined therein), including without
limitation (i) the transfer by D&B to the Company of all of D&B's and its
subsidiaries' right, title and interest in the New D&B Assets, (ii) the transfer
by the Company and its subsidiaries to D&B, The Reuben H. Donnelley Corporation
and its subsidiaries of all of the Company's and its subsidiaries' right, title
and interest in the RHD Assets (as defined in the Distribution Agreement), (iii)
the execution, delivery and performance by each party thereto of each Spin-off
Document (other than the Information Statement) and (iv) the Distribution (as
defined in the Distribution Agreement).
"Spin-off Date" means the date of consummation of the Spin-off.
"Spin-off Documents" means (i) the Information Statement, (ii) the
Distribution Agreement and (iii) each Ancillary Agreement (as defined in the
Distribution Agreement) substantially in the form provided to the Lenders on
June 8, 1998.
"Statutory Reserve Rate" means, with respect to any Eligible Currency, 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 any Governmental Authority of
the jurisdiction of such currency (or any other jurisdiction in which the
funding operations of any Lender shall be conducted with respect to any Eligible
Currency) to which banks in such jurisdiction are subject for any category of
deposits or liabilities customarily used to fund loans in such currency or by
reference to which interest rates applicable to Loans in such Eligible Currency
are determined. Such reserve, liquid asset or similar percentages shall, in the
case of dollars, include those imposed pursuant to Regulation D of the Board.
Eurocurrency Loans shall
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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.
"Sterling" or "(pound)" means the lawful money of the United Kingdom.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Successor Corporation" has the meaning set forth in Section 6.02(c).
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposures at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan in dollars made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Assets" means, at any date as to any Person, the total assets of
such Person and its consolidated subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"Total Debt" means, at any date all indebtedness of the Company and its
consolidated Subsidiaries at such date to the extent such items should be
reflected
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on the consolidated balance sheet of the Company (excluding any such items which
appear only in the notes to such consolidated balance sheet) at such date in
accordance with GAAP.
"Total Debt to EBITDA Ratio" means, at any time, the ratio of (a) Total
Debt at such time to (b) EBITDA for the most recent period of four consecutive
fiscal quarters of the Company ended at or prior to such time. Solely for
purposes of this definition, (i) if the Company or any of its consolidated
subsidiaries shall have completed an acquisition of all or a substantial part of
the assets, or a going concern business or division, of any Person, or (ii) if
the Company shall have merged with any Person during such period or (iii) the
Company or any of its consolidated subsidiaries shall have disposed of all or a
substantial part of its assets or a going concern business or division, in each
case, EBITDA for the relevant period shall be determined on a pro forma basis as
if such acquisition, disposition or merger, and the incurrence of any related
Indebtedness, had occurred on the first day of such period. "Total Debt" for
purposes of the "Total Debt to EBITDA Ratio" at any date prior to the Spin-off
Date shall be calculated by giving effect to the Spin-off as if it had occurred
on such date.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and the Borrowing Subsidiary Agreements, the
borrowing of Loans, the use of the proceeds thereof and the Spin-off.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBO Rate, the Alternate Base Rate or, in the
case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"Yen" or "(Y)" refers to the lawful money of Japan.
"Yen Commitment" means, with respect to each Yen Lender, the commitment of
such Yen Lender to make Revolving Yen Loans, expressed as an amount representing
the maximum aggregate Dollar Equivalent of the principal amount of such Yen
Lender's outstanding Revolving Yen Loans that may be outstanding after giving
effect to any such Revolving Yen Loan, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Yen Lender pursuant to
Section 10.04. The initial amount of each Yen Lender's Yen Commitment is set
forth on Schedule 2.01(c) or in the Assignment and Acceptance pursuant to which
such Yen Lender shall have assumed its Yen Commitment, as applicable.
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"Yen Lenders" shall mean the Persons listed on Schedule 2.01(c) and any
other Person that shall become a Yen Lender pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a Yen Lender pursuant
to an Assignment and Acceptance.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring
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after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Company that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New York City
time, on each Calculation Date, the Administrative Agent shall (i) determine the
Exchange Rate as of such Calculation Date with respect to each Eligible Currency
(A) in which any Lender or Lenders shall have extended a commitment to make
Loans or (B) in which any Loan or Loans shall be outstanding and (ii) give
notice thereof to the Lenders and the Company. The Exchange Rates so determined
shall become effective on the first Business Day immediately following the
relevant Calculation Date (a "Reset Date"), shall remain effective until the
next succeeding Reset Date, and shall for all purposes of this Agreement (other
than clause (i) of Section 2.13, Section 10.14 or any other provision expressly
requiring the use of a current Exchange Rate) be the Exchange Rates employed in
converting any amounts between dollars and Eligible Currencies.
(b) Not later than 5:00 p.m., New York City time, on each Reset Date and
each Borrowing Date with respect to Multicurrency Loans, the Administrative
Agent shall (iii) determine the Dollar Equivalent of the aggregate principal
amount of the Multicurrency Loans then outstanding (after giving effect to any
Multicurrency Loans to be made or repaid on such date) and (iv) notify the
Lenders and the Company of the results of such determination.
ARTICLE 2
THE CREDIT
Section 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender, severally and not jointly, agrees to make Revolving
Loans, denominated in dollars, to any Borrower from time to time during the
Availability Period for the Facility Commitments in an aggregate principal
amount that will not result in (i) such
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Lender's Revolving Credit Exposure exceeding such Lender's Facility Commitment
or (ii) the sum of the total Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeding the total Facility Commitments.
(b) Subject to the terms and conditions set forth herein, each Designated
Currency Lender agrees to make Loans denominated in any Designated Currency to
any Borrower from time to time during the Availability Period for the Designated
Currency Commitments in an aggregate principal amount that, after giving effect
to any requested Loan, will not result in (i) the aggregate amount of the Dollar
Equivalents of the principal amounts of the Revolving Designated Currency Loans
of any Designated Currency Lender exceeding such Lender's Designated Currency
Commitment, (ii) the aggregate amount of the Dollar Equivalents of the principal
amounts of all outstanding Revolving Designated Currency Loans and Revolving Yen
Loans exceeding $200,000,000, (iii) any Lender's Revolving Credit Exposure
exceeding such Lender's Facility Commitment or (iv) the sum of the total
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Facility Commitments.
(c) Subject to the terms and conditions set forth herein, each Yen Lender
agrees to make Loans denominated in Yen to any Borrower from time to time during
the Availability Period for the Yen Commitments in an aggregate principal amount
that, after giving effect to any requested Loan, will not result in (i) the
Dollar Equivalent of the aggregate principal amount of the Revolving Yen Loans
of any Yen Lender exceeding such Lender's Yen Commitment, (ii) the aggregate
amount of the Dollar Equivalents of the principal amounts of all outstanding
Revolving Designated Currency Loans and Revolving Yen Loans exceeding
$200,000,000, (iii) any Lender's Revolving Credit Exposure exceeding such
Lender's Facility Commitment or (iv) the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures exceeding the total Facility
Commitments.
(d) Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Dollar Loan shall
be made as part of a Borrowing consisting of Revolving Loans denominated in
dollars and made by the Lenders ratably in accordance with their respective
Available Facility Commitments. Each Revolving Designated Currency Loan shall be
made as part of a Borrowing consisting of Revolving Loans denominated in the
same Designated Currency made by the Designated Currency Lenders ratably in
accordance with their respective Designated Currency Commitments. Each Revolving
Yen Loan shall be made as part of a Borrowing consisting of Revolving Loans
denominated in Yen
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and made by the Yen Lenders ratably in accordance with their respective Yen
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.04. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments and Competitive Bids of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.13, (v) each Revolving Dollar Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the applicable Borrower
may request in accordance herewith, (vi) each Revolving Designated Currency
Borrowing shall be comprised entirely of Eurocurrency Loans, (iii) each
Revolving Yen Borrowing shall be comprised entirely of Eurocurrency Loans and
(iv) each Competitive Borrowing shall be comprised entirely of Eurocurrency
Competitive Loans or Fixed Rate Loans as the applicable Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of any Borrower to repay
such Loan in accordance with the terms of this Agreement and (ii) unless any
Borrower shall request that an Affiliate of a Lender make a Loan, a Lender may
not recover for any increased costs under Sections 2.14 or 2.16 incurred solely
as a result of an Affiliate of such Lender, rather than such Lender, making a
Loan, if, without economic disadvantage to, and consistent with the policies and
practices of, such Lender, such Loan could have been made in a manner that would
have avoided such increased costs under Section 2.14 or 2.16.
(c) At the commencement of each Interest Period for any Borrowing (other
than a Swingline Loan), such Borrowing shall be in an aggregate amount that is
at least equal to the Borrowing Minimum and an integral multiple equal to the
Borrowing Multiple; provided that (i) a Eurocurrency Revolving Borrowing that is
a Multicurrency Borrowing may be continued into a new Interest Period pursuant
to Section 2.07 without regard to the foregoing and (ii) an ABR Revolving Dollar
Borrowing may be in an aggregate amount that is equal to the aggregate Available
Facility Commitments. Each Swingline Loan shall be in an amount that is an
integral multiple of $100,000 and not less than $500,000. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of twenty (but no more than ten in
any one currency) Eurocurrency Revolving Borrowings outstanding.
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(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the
Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, a Borrower shall notify the Applicable Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing denominated in dollars,
not later than 11:00 a.m., New York City time, three Business Days before the
date of the proposed Borrowing, (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing and (c) in the case of a Revolving Designated Currency
Borrowing or a Revolving Yen Borrowing, not later than 10:00 a.m., London time,
three Business Days before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Applicable Agent of a written
Borrowing Request in a form approved by the Applicable Agent and signed by the
applicable Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period", and the currency of such
Borrowing, which shall be dollars, Yen or a Designated Currency; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06; and
(vi) in the case of a Borrowing in Yen or a Designated Currency, the
location from which payments of the principal and interest on such
Borrowing will be made, which will comply with the requirements of Section
2.17.
If no election as to the Type of Revolving Dollar Borrowing is specified, then
the requested Revolving Dollar Borrowing shall be an ABR Borrowing. If no
currency is specified with respect to any requested Eurocurrency Revolving
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Borrowing, then the relevant Borrower shall be deemed to have selected dollars.
If no Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the relevant Borrower shall be deemed to have selected
an Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Applicable Agent shall
advise each Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the total Competitive
Loan Exposures at any time shall not exceed the total Facility Commitments. To
request Competitive Bids, a Borrower shall notify the Applicable Agent of such
request by telephone, (i) in the case of a Eurocurrency Borrowing denominated in
dollars, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency
Borrowing denominated in an Eligible Currency, not later than 10:00 a.m., London
time, four Business Days before the date of the proposed Borrowing, (iii) in the
case of a Fixed Rate Borrowing denominated in dollars, not later than 10:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing and (iv) in the case of a Fixed Rate Borrowing denominated in an
Eligible Currency, not later than 10:00 a.m., London time, four Business Days
before the date of the proposed Borrowing; provided that the Borrowers may
submit jointly up to (but not more than) three Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Applicable Agent of a written Competitive Bid Request in a form approved
by the Applicable Agent and signed by the applicable Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
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(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period", and the currency of such Borrowing which shall be dollars or an
Eligible Currency; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06; and
(vi) in the case of a Borrowing in Yen or a Designated Currency,
the location from which payments of the principal and interest on such
Borrowing will be made, which will comply with the requirements of Section
2.17.
If no currency is specified with respect to any Competitive Bid Request, the
relevant Borrower shall be deemed to have selected dollars. Promptly following
receipt of a Competitive Bid Request in accordance with this Section, the
Applicable Agent shall notify the Lenders of the details thereof by telecopy,
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to any Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form reasonably approved by the
Applicable Agent and must be received by the Applicable Agent by telecopy, (i)
in the case of a Eurocurrency Competitive Borrowing denominated in dollars, not
later than 9:30 a.m., New York City time, three Business Days before the
proposed date of such Competitive Borrowing, (ii) in the case of a Eurocurrency
Competitive Borrowing denominated in an Eligible Currency, not later than 10:30
a.m., London time, three Business Days before the date of the proposed
Competitive Borrowing, (iii) in the case of a Fixed Rate Borrowing denominated
in dollars, not later than 9:30 a.m., New York City time, on the proposed date
of such Competitive Borrowing and (iv) in the case of a Fixed Rate Borrowing
denominated in an Eligible Currency, not later than 10:30 a.m., London time,
three Business Days before the date of the proposed Competitive Borrowing.
Competitive Bids that do not conform substantially to the form approved by the
Applicable Agent may be rejected by the Applicable Agent, and the Applicable
Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount (which shall be in an
amount that is at least equal to the Borrowing Minimum and an integral multiple
equal to the Borrowing Multiple, and which may equal the entire principal amount
of the Competitive Borrowing requested by the applicable Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii the
Competitive Bid Rate or
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Rates at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places), (iii) the Interest Period applicable to each such Loan and the last day
thereof and (iv) the currency of the Competitive Borrowing.
(c) The Applicable Agent shall promptly notify the relevant Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, a Borrower may
accept or reject any Competitive Bid. The relevant Borrower shall notify the
Applicable Agent by telephone, confirmed by telecopy in a form reasonably
approved by the Applicable Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, (i) in the case of a Eurocurrency
Competitive Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, three Business Days before the date of the proposed Competitive
Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing denominated
in an Eligible Currency, not later than 10:30 a.m., London time, three Business
Days before the date of the proposed Competitive Borrowing, (iii) in the case of
a Fixed Rate Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, on the proposed date of the Competitive Borrowing and (iv) in
the case of a Fixed Rate Borrowing denominated in an Eligible Currency, not
later than 10:30 a.m., London time, three Business Days before the date of the
proposed Competitive Borrowing; provided that (i) the failure of such Borrower
to give such notice shall be deemed to be a rejection of each Competitive Bid,
(ii) such Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv)
to the extent necessary to comply with clause (iii) above, such Borrower may
accept Competitive Bids at the same Competitive Bid Rate in part, which
acceptance, in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of at least the Borrowing Minimum and an integral
multiple equal to the Borrowing Multiple; provided further that if a Competitive
Loan must be in an amount less than the Borrowing Minimum because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 (or the Dollar Equivalent thereof), and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular
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Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of the Borrowing Multiple in a manner determined by such
Borrower. A notice given by any Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Applicable Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
relevant Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans in dollars
to any Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (ix)
the aggregate principal amount of outstanding Swingline Loans exceeding
$20,000,000 or (x) the sum of the total Revolving Credit Exposures plus the
total Competitive Loan Exposures exceeding the total Facility Commitments;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, any Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from any Borrower. The Swingline Lender shall make each
Swingline Loan available to the relevant Borrower by means of a credit to the
general deposit account of the Company with the Swingline Lender by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan (and if the
applicable Borrower is a Borrowing Subsidiary, the Company shall make such funds
available to such Borrowing Subsidiary) or to such other account as may be
specified in the applicable Borrowing Request.
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(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to
each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the relevant Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from any Borrower (or other party on behalf of such
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the relevant
Borrower of any default in the payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by (i) 12:00 noon, New York City time, in case of a
Loan denominated in dollars, (ii) 11:00 a.m., London time, in the case of a
Revolving Designated Currency Loan,
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(iii) 11:00 a.m., Tokyo time, in the case of a Revolving Yen Loan or (iv) 11:00
a.m., local time, in the case of a Competitive Loan denominated in an Eligible
Currency, in each case to the account of the Applicable Agent most recently
designated by it for such purpose for Loans of such Class by notice to the
applicable Lenders; provided that Swingline Loans shall be made as provided in
Section 2.05. The Applicable Agent will make such Loans available to the
relevant Borrower (i) in case of a Loan denominated in dollars, promptly (but in
no event later than 1:00 p.m., New York City time), by crediting the amounts so
received by 12:00 noon, New York City time, in like funds, to an account of the
Company maintained with the Administrative Agent in New York City, (ii) in the
case of Revolving Designated Currency Loans, promptly (but in no event later
than 12:00 noon, London time), by crediting the amounts so received by 11:00
a.m., London time, in like funds, to an account of the Company maintained with
the Applicable Agent in London, (iii) in the case of Revolving Yen Loans,
promptly (but in no event later than 12:00 noon, Tokyo time), by crediting the
amounts so received by 11:00 a.m., Tokyo time, in like funds, to an account of
the Company maintained with the Applicable Agent in London (in each case as
designated by such Borrower in the applicable Borrowing Request or Competitive
Bid Request (and, if the applicable Borrower is a Borrowing Subsidiary, the
Company shall make such funds available to such Borrowing Subsidiary)), or (iv)
to such other account as may be specified in the applicable Borrowing Request or
Competitive Bid Request.
(b) Unless the Applicable Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make
available to the Applicable Agent such Lender's share of such Borrowing, the
Applicable Agent may assume that such Lender has made such share available on
such date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the relevant Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Applicable Agent, then the applicable
Lender and each Borrower severally agree to pay to the Applicable Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the relevant
Borrower to but excluding the date of payment to the Applicable Agent, at (i)
in the case of such Lender, (x) the Federal Funds Effective Rate (in the case of
a Borrowing in dollars) and (y) the rate reasonably determined by the Applicable
Agent to be the cost to it of funding such amount (in the case of a Borrowing in
an Eligible Currency) or (ii) in the case of such Borrower, the interest rate
applicable to the subject Loan. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender's Loan included
in such Borrowing and the Applicable Agent shall return to such Borrower any
amount (including interest) paid by the
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Borrower to the Applicable Agent pursuant to this paragraph with respect to such
amount.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the relevant Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Competitive Borrowings or Swingline Borrowings, which may not be converted or
continued. Notwithstanding any contrary provision herein, this Section shall not
be construed to permit any Borrower to (i) change the currency of any Borrowing
or (ii) convert any Multicurrency Borrowing to an ABR Borrowing, subject to
clause (iii) of subsection (e) below.
(b) To make an election pursuant to this Section, a Borrower shall notify
the Administrative Agent of such election by telephone by the time and at the
office at which a Borrowing Request would be required to be delivered under
Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form reasonably approved by the
Administrative Agent and signed by the relevant Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
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(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing (unless such Borrowing is a Multicurrency
Borrowing, in which case such Borrowing shall be continued at the end of the
Interest Period applicable thereto as a Eurocurrency Revolving Borrowing with an
Interest Period of a duration of one month). Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Applicable Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing
(except as set forth in clause (ii)(y)) and (ii) unless repaid (x) each
Eurocurrency Revolving Borrowing (other than a Multicurrency Borrowing) shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto and (y) each Multicurrency Borrowing shall be continued at the end of
the Interest Period applicable thereto as a Multicurrency Borrowing with an
Interest Period of a duration of one month.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Facility Commitments, the Designated Currency
Commitments and the Yen Commitments shall each terminate on the Maturity Date.
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(b) The Company may at any time terminate, or from time to time reduce,
the Facility Commitments, the Designated Currency Commitments or the Yen
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Company shall not terminate or reduce (A) the Facility Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.10, the sum of the Revolving Credit Exposures plus the total
Competitive Loan Exposures would exceed the total Facility Commitments, (B0 the
Designated Currency Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.10, the aggregate principal
amount of the outstanding Revolving Designated Currency Loans would exceed the
total Designated Currency Commitments, or (C) the Yen Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10, the aggregate principal amount of the outstanding Revolving Yen
Loans would exceed the total Yen Commitments.
(c) The Company shall notify the Administrative Agent of any election to
terminate or reduce the Facility Commitments, the Designated Currency
Commitments or the Yen Commitments under paragraph (b) of this Section at least
one Business Day (or, to the extent a concurrent prepayment of Loans is required
in accordance with Section 2.10, upon the minimum advance notice required in
connection with such prepayment under such Section) prior to the effective date
of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Facility Commitments, the Designated Currency Commitments or
the Yen Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Facility Commitments, the Designated
Currency Commitments or the Yen Commitments shall be permanent. Each reduction
of the Facility Commitments, the Designated Currency Commitments or the Yen
Commitments shall be made ratably among the Lenders, the Designated Currency
Lenders or the Yen Lenders, as the case may be, in accordance with their
respective Facility Commitments, Designated Currency Commitments or Yen
Commitments, as applicable.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal
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amount of each Revolving Loan of such Borrower on the Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Competitive Loan of such Borrower on the last day of the Interest
Period applicable to such Loan and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan of such Borrower on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type (and, in
the case of a Multicurrency Loan, the currency) thereof and the Interest Period
(if any) applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, each Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and the Company. Thereafter, the Loans
evidenced by each such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have the right
at any time and from time to time to prepay any Borrowing of such Borrower in
whole or in part, subject to prior notice in accordance with paragraph (d) of
this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
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(b) If, on the last day of any Interest Period for any Borrowing, the sum
of the total Revolving Credit Exposures plus the total Competitive Loan
Exposures exceeds the total Facility Commitments, the relevant Borrower shall,
on such day, prepay Revolving Loans in an amount equal to the lesser of (i) such
excess and (ii) the amount of such Borrowing. If, on any Reset Date, the sum of
the total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeds 105% of the total Facility Commitments, then the Borrowers shall, on the
next Reset Date, prepay one or more Revolving Borrowings in an aggregate
principal amount equal to the excess, if any, of the sum of the total Revolving
Credit Exposures plus the total Competitive Loan Exposures (in each case as of
such next Reset Date) over the total Facility Commitments.
(c) If, on the last day of any Interest Period for any Multicurrency
Borrowing, the Dollar Equivalent of the aggregate principal amount of
outstanding Multicurrency Loans exceeds $200,000,000, the relevant Borrower
shall, on such day, prepay such Multicurrency Borrowing in an amount equal to
the lesser of (i) such excess and (ii) the amount of such Borrowing. If, on any
Reset Date, the Dollar Equivalent of the aggregate principal amount of
outstanding Multicurrency Loans exceed 105% of $200,000,000, then the Borrowers
shall, on the next Reset Date, prepay one or more Multicurrency Borrowings in an
aggregate principal amount equal to the excess, if any, of the Dollar Equivalent
of the aggregate principal amount of outstanding Multicurrency Loans (as of such
next Reset Date) over $200,000,000.
(d) The relevant Borrower shall notify the Applicable Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Dollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment,
(ii) in the case of prepayment of a Eurocurrency Designated Currency Borrowing
or a Eurocurrency Yen Borrowing, not later than 10:00 a.m., London time, three
Business Days before the date of prepayment, (iii) in the case of prepayment of
an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment, or (iv) in the case of prepayment of
a Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
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be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Facility Commitments, the Designated
Currency Commitments or the Yen Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise
the Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02
(other than any partial prepayment made concurrently with a reduction of the
commitments permitted by Section 2.08(b), which may be in the amount necessary
to comply with the condition to such reduction set forth in such Section). Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Facility Commitment of such Lender
(whether used or unused) during the period from and including the date hereof to
but excluding the date on which such Facility Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure or
Competitive Loan Exposure after its Facility Commitment terminates, then such
facility fee shall continue to accrue on the daily amount of such Lender's
Revolving Credit Exposure or Competitive Loan Exposure from and including the
date on which its Facility Commitment terminates to but excluding the date on
which such Lender ceases to have any Revolving Credit Exposure or Competitive
Loan Exposure. Accrued facility fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Facility Commitments terminate, commencing on the first such date to occur after
the date hereof; provided that any facility fees accruing after the date on
which the Facility Commitments terminate shall be payable on demand. All
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the
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case of facility fees, to the Lenders. Fees paid shall not be refundable under
any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest
at a rate per annum equal to (i) in the case of a Eurocurrency Revolving Loan,
the LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurocurrency Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal to
the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period for the Facility
Commitments), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment, (iii) in the event of
any conversion of any Eurocurrency Revolving Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion and (iv) all accrued interest shall be
payable upon termination of the Facility Commitments.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but
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excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be
presumed correct absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
presumed correct absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, (i)
in the case of a Eurocurrency Competitive Loan, the Lender that is required to
make such Loan or (ii) in the case of a Revolving Designated Currency Loan or
Revolving Yen Loan, as the case may be, Designated Currency Lenders or Yen
Lenders, as applicable, having Designated Currency Commitments or Yen
Commitments, as applicable, representing at least 51% of the Designated Currency
Commitments or Yen Commitments, as applicable, at such time) that the LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period; or
(c) in the case of a Multicurrency Borrowing, the Administrative Agent
determines (which determination shall be presumed correct absent manifest error)
that deposits in the applicable currency are not generally available, or cannot
be obtained by the Multicurrency Lenders in the applicable market;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders or the applicable Multicurrency Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Company and the Lenders or the applicable Multicurrency Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, and any Eurocurrency Borrowing so requested to be continued shall,
at the option of the Company, be repaid |
