EXECUTION COPY
MULTICURRENCY CREDIT AGREEMENT
dated as of November 18, 1998
among
CRANE CO.,
THE BORROWING SUBSIDIARIES,
THE LENDERS,
THE BANK OF NEW YORK,
as Syndication Agent,
FLEET NATIONAL BANK,
as Documentation Agent,
THE CHASE MANHATTAN BANK
and
FIRST UNION NATIONAL BANK,
as Co-Agents
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement (this "AGREEMENT"), dated as of
November 18, 1998, is among Crane Co., a Delaware corporation, (the "Company"),
any Borrowing Subsidiaries which are now or may hereafter become a party hereto
from time to time, the Lenders, The Bank of New York, as Syndication Agent,
Fleet National Bank, as Documentation Agent, The Chase Manhattan Bank and First
Union National Bank, as Co-Agents and The First National Bank of Chicago, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1. DEFINITIONS. As used in this Agreement:
"ABSOLUTE RATE" means, with respect to an Absolute Rate Loan made by a
Lender for the relevant Absolute Rate Interest Period, the rate of interest per
annum (rounded to the nearest 1/100 of 1%) offered by such Lender and accepted
by a Borrower pursuant to Section 2.1.3(vi).
"ABSOLUTE RATE ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the same Borrower at the same time, in the same currency and for the
same Absolute Rate Interest Period.
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.1.3.
"ABSOLUTE RATE INTEREST PERIOD" means, with respect to an Absolute Rate
Advance or Absolute Rate Loan, a period of not fewer than 30 and not more than
270 days commencing on a Business Day selected by the applicable Borrower
pursuant to this Agreement, but in no event extending beyond the Termination
Date. If an Absolute Rate Interest Period would end on a day which is not a
Business Day, such Absolute Rate Interest Period shall end on the next
succeeding Business Day.
"ABSOLUTE RATE LOAN" means a Loan which bears interest at the Absolute
Rate.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation, limited liability
company or division thereof, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the Capital Stock of a corporation, partnership, or limited
liability company which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency).
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"ADMINISTRATIVE AGENT" means The First National Bank of Chicago in its
capacity as contractual representative for the Lenders pursuant to Article XI,
and not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article XI.
"ADVANCE" means a Revolving Advance, and Alternate Currency Advance or
a Competitive Bid Advance.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of Capital Stock, by contract or otherwise.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
Lenders, as may be reduced from time to time pursuant to the terms hereof. The
initial Aggregate Commitment is Three Hundred Million and 00/100 Dollars
($300,000,000).
"AGREED CURRENCY" shall mean (i) Dollars, (ii) only so long as such
currencies remain Eligible Currencies, Australian Dollars, Canadian Dollars,
Deutsche Marks, French Francs and Sterling, (iii) upon and after the Euro
Implementation Date, the Euro only for so long as the Euro is and remains an
Eligible Currency, and (iv) and any other currency which is freely available and
convertible into Dollars in which deposits are customarily offered to banks in
the London interbank market, which the applicable Borrower requests the
Administrative Agent to include as an Agreed Currency hereunder and which is
acceptable to each Lender; provided that the Administrative Agent shall promptly
notify each Lender of each such request and each Lender shall be deemed to have
agreed to each such request if its objection thereto has not been received by
the Administrative Agent within ten (10) Business Days from the date of such
notification by the Administrative Agent to such Lender.
"AGREEMENT" means this Multicurrency Credit Agreement, as it may be
amended, modified, supplemented or restated and in effect from time to time.
"ALTERNATE BASE RATE" means the sum of (a) the greater of (x) the
Corporate Base Rate or (y) the Federal Funds Effective Rate plus 0.50% per annum
plus (b) the percentage indicated as the Applicable Margin in connection with
Alternate Base Rate Loans.
"ALTERNATE BASE RATE ADVANCE" means an Advance which bears interest at the
Alternate Base Rate.
"ALTERNATE BASE RATE LOAN" means a Loan which bears interest at the
Alternate Base Rate.
"ALTERNATE CURRENCY" shall mean (i) only so long as such currencies remain
Eligible Currencies, Australian Dollars, Canadian Dollars, Deutsche Marks and
Sterling and (ii) any other Eligible Currency, which the applicable Borrower
requests the Administrative Agent to include
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as an Alternate Currency hereunder and which is acceptable to one hundred
percent (100%) of the applicable Alternate Currency Banks and with respect to
which an Alternate Currency Addendum has been executed among one of the
Borrowers, the Alternate Currency Banks and an Alternate Currency Agent in
connection therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the form
of Exhibit A, completed with the applicable information and entered into among
one of the Borrowers eligible to borrow with respect to the applicable Alternate
Currency, the Alternate Currency Banks and an Alternate Currency Agent.
"ALTERNATE CURRENCY ADVANCE" means a borrowing hereunder (or conversion
or continuation thereof) consisting of the aggregate amount of the several
Alternate Currency Loans made by the Alternate Currency Banks to one or more of
the Borrowers pursuant to Section 2.1.2 of the same Type, denominated in the
same currency, to the same Borrower and for the same Interest Period.
"ALTERNATE CURRENCY AGENT" means one or more entities (which may be the
Administrative Agent or its local affiliates), satisfactory to the
Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"ALTERNATE CURRENCY BANK" means each Lender or, at the option of such
Lender, any Affiliate, branch or agency thereof and which is a party to an
Alternate Currency Addendum. If any agency or Affiliate of a Lender shall be a
party to an Alternate Currency Addendum, such agency or Affiliate shall, to the
extent of any commitment extended and any Loans made by it, have all the rights
of such Lender hereunder; provided, however, that such Lender shall, to the
exclusion of such agency or Affiliate, continue to have all the voting rights
vested in it by the terms hereof.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a Loan
made in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for each Lender (or where
applicable its designated Alternate Currency Banks) for all Alternate
Currencies, the obligation of such Lender (directly or through such designated
Alternate Currency Banks) to make Alternate Currency Loans not exceeding in the
aggregate for all such Alternate Currency Loans such Lender's Percentage of the
Maximum Alternate Currency Amount, as such amount may be modified from time to
time pursuant to the terms of this Agreement.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any Alternate
Currency Advance, the Interest Period as set forth on the applicable Alternate
Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Banks for such Alternate
Currency to a Borrower pursuant to Section 2.1.2 and an Alternate Currency
Addendum.
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"ALTERNATE CURRENCY NOTE" means a promissory note of any Borrower, in
favor of the applicable Alternate Currency Banks evidencing the obligation of
such Borrower to repay Alternate Currency Loans, as amended or modified from
time to time and together with any promissory note or notes issued in exchange
or replacement therefor.
"APPLICABLE MARGIN" means, at any date of determination thereof with
respect to any Advance (other than Competitive Bid Advances), the facility fees
and utilization fees payable pursuant to Section 2.4, the respective rates per
annum for such Advance, facility fees, and utilization fees calculated in
accordance with the terms of Section 2.3, or, in the case of any Alternate
Currency Advance, as set forth on the applicable Alternate Currency Addendum.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any amount
of Dollars shall mean the Equivalent Amount of such currency with respect to
such amount of Dollars at such date (i) if such currency is Australian Dollars,
Canadian Dollars, Deutsche Marks, French Francs or Sterling, rounded up to the
nearest 100,000 of such currency and (ii) if such currency is any other Agreed
Currency, rounded up to the nearest amount of such currency as determined by the
Administrative Agent from time to time.
"ARRANGER" means First Chicago Capital Markets, Inc.
"ARTICLE" means an article of this Agreement unless another document is
specifically referenced.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit B hereto pursuant
to which such Subsidiary agrees to become a "BORROWING SUBSIDIARY" and agrees to
be bound by the terms and conditions hereof.
"AUSTRALIAN DOLLARS" means the lawful currency of Australia.
"AVAILABLE AMOUNT" means, at any particular time, the amount by which the
Aggregate Commitment (taking into account each Competitive Bid Reduction) at
such time exceeds the sum of the Syndicated Credit Obligations at such time.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by the Company or any ERISA
Affiliate.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan) subject to Title IV of ERISA in respect
of which the Company or any ERISA Affiliate is an "employer" as defined in
Section 3(5) of ERISA or with respect to which the Company or any ERISA
Affiliate has any potential liability.
"BORROWER" means, as applicable, the Company, the Subsidiaries listed on
Schedule 1.1.1 and any other Borrowing Subsidiary, together with their
respective successors and assigns.
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"BORROWING DATE" means a date on which an Advance of any Type is made
hereunder.
"BORROWING NOTICE" means a notice as provided in Section 2.1.1 with
respect to Revolving Loans, Section 2.1.2 with respect to Alternate Currency
Loans, or Section 2.1.3 with respect to Competitive Bid Loans.
"BORROWING SUBSIDIARY" means each of the Subsidiaries listed on Schedule
1.1.1 and any other Wholly-Owned Subsidiary duly designated by the Company
pursuant to Section 2.5.14 hereof to request Advances hereunder, which
Subsidiary shall have satisfied the provisions of Section 4.2 hereof and shall
have delivered to the Administrative Agent an Assumption Letter in accordance
with Section 2.5.14 and such other documents, instruments and agreements as may
be required pursuant to the terms of this Agreement; provided, however, if any
French Subsidiary is included on Schedule 1.1.1 or designated as a Borrowing
Subsidiary pursuant to Section 2.5.14, notwithstanding anything else in this
Agreement to the contrary, such Borrowing Subsidiary shall be permitted to
request only Competitive Bid Loans pursuant to Section 2.1.3 and shall not be
entitled to borrow any Alternate Currency Loans pursuant to Section 2.1.2.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of or any currency conversion with respect to Eurocurrency Advances or
Competitive Bid Advances denominated in a currency other than Dollars, a day
other than Saturday or Sunday on which banks are open for business in Chicago,
Illinois and New York, New York, on which dealings in Dollars are carried on in
the London interbank market and, where funds are to be paid or made available in
a currency other than Dollars (other than in Euro), on which commercial banks
are open for domestic and international business (including dealings in deposits
in such currency) in both London and the place where such funds are to be paid
or made available, (ii) with respect to any borrowing, payment, or rate
selection of Loans denominated in Euro, a day (other than a Saturday or Sunday)
on which a suitable clearing system for the Euro is open for business as
determined by the Administrative Agent, and (iii) for all other purposes, a day
other than Saturday or Sunday on which banks are open for business in Chicago,
Illinois and New York, New York.
"CANADIAN DOLLARS" means the lawful currency of Canada.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (howsoever designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing person, in each such case regardless
of class or designation.
"CAPITALIZED LEASE" means any lease the obligation for rentals with
respect to which is required to be capitalized on a balance sheet of the lessee
in accordance with U.S. GAAP.
"CHANGE IN CONTROL" means:
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(i) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of Capital Stock of the Company
which have ordinary voting power for the election of directors (other than
Capital Stock having such power only by reason of the happening of a
contingency); or
(ii) during any period of twenty-four consecutive calendar months,
individuals (a) who were directors of the Company on the first day of such
period, or (b) whose election or nomination for election to the board of
directors of the Company was recommended or approved by at least a
majority of the directors then still in office who were directors of the
Company on the first day of such period, or whose election or nomination
for election was so approved, shall cease to constitute a majority of the
board of directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the Dollar Amount set forth on Schedule I hereof or as set
forth in the applicable Assignment Agreement in the form of Exhibit C hereto
received by the Administrative Agent under the terms of Section 13.3, as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable assignment and acceptance.
"COMPANY" means Crane Co., a Delaware corporation, and its successors
and assigns, including a debtor-in-possession on behalf of the Company.
"COMPETITIVE BID ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the same Borrower on the same Borrowing Date, in the same currency,
at the same interest basis, and for the same Interest Period.
"COMPETITIVE BID BORROWING NOTICE" is defined in Section 2.1.3(vi).
"COMPETITIVE BID LOAN" means, with respect of a Lender, a Loan made by
such Lender pursuant to Section 2.1.3.
"COMPETITIVE BID MARGIN" means the margin above or below the applicable
Eurocurrency Base Rate or alternative indexed base rate offered for an Indexed
Bid Rate Loan, expressed as a percentage (rounded to the nearest 1/100 of 1%) to
be added or subtracted from such Eurodollar Base Rate or alternative indexed
base rate.
"COMPETITIVE BID QUOTE" means a Competitive Bid Quote, substantially in
the form of Exhibit D hereto, completed and delivered by a Lender to the
Administrative Agent in accordance with Section 2.1.3(iv).
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"COMPETITIVE BID QUOTE REQUEST" means a Competitive Bid Quote Request,
substantially in the form of Exhibit E hereto, completed and delivered by the
Borrower to the Administrative Agent in accordance with Section 2.1.3(ii).
"COMPETITIVE BID REDUCTION" has the meaning specified in Section 2.1.1.
"CONSOLIDATED CASH FLOW" means for any period (i) Consolidated Net Income
for such period PLUS (ii) to the extent deducted in determining Consolidated Net
Income for such period, the sum, without duplication, of (x) depreciation and
amortization expense for such period PLUS (y) the deferred portion of the
provision for taxes on income for such period, all determined on a consolidated
basis for the Company and its Consolidated Subsidiaries in accordance with U.S.
GAAP.
"CONSOLIDATED DEBT" means at any date the Debt of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date
in accordance with U.S. GAAP.
"CONSOLIDATED NET INCOME" means for any period the amount of net income
(or deficit) (before preferred and common stock dividends) of the Company and
its Consolidated Subsidiaries for such period, determined on a consolidated
basis in accordance with U.S. GAAP.
"CONSOLIDATED NET WORTH" means, at any date as of which the same is to be
determined, the consolidated stockholders' equity of the Company and its
Consolidated Subsidiaries, determined as of such date in accordance with U.S.
GAAP.
"CONSOLIDATED SUBSIDIARY" means, at any date as of which the same is to be
determined, any Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated financial statements
if such statements were prepared as of such date in accordance with U.S. GAAP.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.2.3.
"CORPORATE BASE RATE" shall mean the rate of interest per annum announced
by The First National Bank of Chicago from time to time, changing when and as
said corporate base rate changes.
"DEBT" means, with respect to any Person at any date, without duplication,
such Person's (i) obligations for borrowed money, (ii) obligations which are
evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations representing the deferred purchase price of property or services
(other than trade accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iv) the principal
component of obligations pursuant to Capitalized Leases, (v) non-contingent
obligations (and, for purposes of
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Section 6.13 and the definitions of Material Debt and Material Financial
Obligations, contingent obligations) to reimburse any Lender or other Person in
respect of amounts paid under a letter of credit or similar instrument, except
letters of credit in an aggregate amount not exceeding, as of such date,
$40,000,000, (vi) all Debt secured by a Lien or any property now or hereafter
owned or acquired by such Person, whether or not such Debt is assumed or is
otherwise an obligation of such Person, (vii) Synthetic Lease Liabilities of
such Person and (viii) obligations for which such Person is obligated pursuant
to a Guaranty other than recourse obligations in respect of chattel paper sold
by such Person.
"DEFAULT" means an event described in Article VII.
"DEUTSCHE MARKS" means the lawful currency of Germany.
"DOL" means the United States Department of Labor and any successor
department or agency.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount of
such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such currency on the London market at 11:00 a.m.,
London time, two Business Days prior to the date on which such amount is to be
determined.
"DOLLARS" and "$" shall mean lawful money of the United States of America.
"EFFECTIVE DATE" means the date of this Agreement.
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect to
which the Administrative Agent has not given notice in accordance with Section
2.5.12 and that is readily available, freely traded, in which deposits are
customarily offered to banks in the London interbank market, convertible into
Dollars in the international interbank market and as to which an Equivalent
Amount may be readily calculated.
"ENVIRONMENTAL LAWS" means any and all federal, state, local, regional,
departmental and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other governmental
restrictions relating to (i) the protection of the environment, (ii) the effect
of the environment on human health, (iii) emissions, discharges or releases of
pollutants, contaminants, hazardous substances or wastes into surface water,
groundwater or land, or (iv) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other remediation thereof,
including, without limitation, relating to releases, discharges, emissions or
disposals to air, water, land or groundwater, to the withdrawal or use of
groundwater, to the use, handling or disposal of polychlorinated biphenyls
(PCB's), asbestos or urea formaldehyde, to the treatment, storage, disposal or
management of hazardous or dangerous substances (including, without limitation,
petroleum, crude oil or any fraction thereof, or other hydrocarbons), pollutants
or
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contaminants, to exposure to toxic, hazardous or other controlled, prohibited or
regulated substances or emissions.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of Dollars
at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, two Business Days prior to the date on which such
amount is to be determined (i) if such currency is Sterling, Australian Dollars,
Canadian Dollars, Deutsche Marks or French Francs, rounded up to the nearest
100,000 of such currency and (ii) if such currency is any other Agreed Currency
or Alternate Currency, rounded up to the nearest amount of such currency as
determined by the Administrative Agent from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and any successor statute.
"ERISA AFFILIATE" means any (i) corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Company, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Company, and (iii)
member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as the Company, any corporation described
in clause (i) above or any partnership or trade or business described in clause
(ii) above.
"EURO" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EURO IMPLEMENTATION DATE" means the first date (currently expected to be
January 1, 1999) on which the Euro becomes the currency of some or all of the
member states of the European Union.
"EUROCURRENCY ADVANCE" means an Advance which bears interest at a
Eurocurrency Rate requested by the applicable Borrower pursuant to Section 2.2,
or, in the case of a Indexed Bid Rate Loan pursuant to Section 2.1.3.
"EUROCURRENCY BASE RATE" means, with respect to any Eurocurrency Advance
for any specified Interest Period or a Competitive Bid Advance pursuant to an
Indexed Bid Rate Auction for an interest period designated by a Borrower, in
each case with respect to an Agreed Currency, either (i) the rate at which
deposits in the applicable Agreed Currency are offered by the Administrative
Agent to first-class banks in the London interbank market at approximately 11
a.m. (London time) two Business Days prior to the first day of such Interest
Period or interest period, in the approximate amount of the applicable
Percentage of the Administrative Agent (in its capacity as a Lender) of such
Eurocurrency Advance or in the case of an Indexed Bid Rate Auction in an Amount
equal to $1,000,000 and, in each case, having a maturity approximately equal to
such Interest Period or interest period or (ii) if no such rate of interest is
available for any reason, for any specified Interest Period or interest period,
the rate of interest per annum equal to the rate for deposits in the applicable
Agreed Currency of such Eurocurrency Advance or Indexed Bid Rate Advance with a
maturity approximately
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equal to such Interest Period or interest period which appears on Telerate Page
3740 or Telerate Page 3750, as applicable, or, if there is more than one such
rate, the average of such rates rounded to the nearest 1/100 of 1%, as of 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period. The terms "Telerate Page 3740" and "Telerate Page 3750" mean the display
designated as "Page 3740" and "Page 3750", as applicable, on the Associated
Press-Dow Xxxxx Telerate Service (or such other page as may replace Page 3740 or
Page 3750, as applicable, on the Associated Press-Dow Xxxxx Telerate Service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest rate settlement rates for the relevant Agreed Currency).
Any Eurocurrency Base Rate determined on the basis of the rate displayed on
Telerate Page 3740 or Telerate Page 3750 in accordance with the foregoing
provisions of this subparagraph shall be subject to corrections, if any, made in
such rate and displayed by the Associated Press-Dow Xxxxx Telerate Service
within one hour of the time when such rate is first displayed by such service.
"EUROCURRENCY LOAN" means a Loan which bears interest at a Eurocurrency
Rate requested by the applicable Borrower pursuant to Section 2.2.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent or any Lender,
as applicable, shall mean, for each of the Agreed Currencies, the office, branch
or affiliate of the Administrative Agent or such Lender, as applicable,
specified as the "EUROCURRENCY PAYMENT OFFICE" for such currency in Schedule I
hereto or such other office, branch, affiliate or correspondent bank of the
Administrative Agent or such Lender as it may from time to time specify to the
Company and each Lender as its Eurocurrency Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin.
"EXCLUDED TAXES" means, in the case of each Lender or applicable Lending
Installation and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation designated pursuant to Section 2.5.13 is located.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to (i) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York; or (ii) if such rate is
not so
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published for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (New York time) for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
"FEE LETTER" is defined in Section 2.4.2.
"FINANCIAL OFFICER" means the Chief Financial Officer, the Chief
Accounting Officer, the Corporate Treasurer or such other officer of the Company
as may be designated by the Company from time to time.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as defined
in Section 3(3) of ERISA which is maintained or contributed to for the benefit
of the employees of the Company, any of its Subsidiaries or any members of its
Controlled Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4).
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of the Company, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA,
and (iii) under applicable local law, is required to be funded through a trust
or other funding vehicle.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government including any authority or other
quasi-governmental entity established to perform any of such functions.
"FUNDED DEBT" means at any date, with respect to any Person, all Debt of
such Person that is not a current liability as of such date.
"GROSS NEGLIGENCE" means either recklessness or actions taken or omitted
with conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the term "gross negligence" is
used with respect to the Administrative Agent or any Lender or any indemnitee in
any of the other Loan Documents, it shall have the meaning set forth herein.
"GUARANTEED OBLIGATIONS" is defined in Section 9.1.
"GUARANTY" of any Person means any agreement by which such person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, and shall include, without limitation, the
contingent liability of such Person under or in relation to any letter of credit
and disclosed support agreements, but shall exclude endorsements for collection
or deposit in the ordinary course of business.
12
"HEDGING OBLIGATIONS" of a Person means any and all net obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, or any similar derivative
transactions and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"INDEXED BID RATE" means, with respect to an Indexed Bid Rate Loan made by
a Lender for the relevant Interest Period, the sum of (i) the Eurocurrency Base
Rate (or alternative indexed base rate identified in the applicable Competitive
Bid Quote Request) and (ii) the Competitive Bid Margin offered by such Lender
and accepted by the applicable Borrower pursuant to Section 2.1.3(vi).
"INDEXED BID RATE ADVANCE" means a Competitive Bid Advance which bears
interest at an Indexed Bid Rate.
"INDEXED BID RATE LOAN" means a Competitive Bid Loan which bears interest
at an Indexed Bid Rate.
"INDEXED BID RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.1.3.
"INTEREST PERIOD" means, (i) an Absolute Rate Interest Period, (ii) any
Alternate Currency Interest Period, (iii) with respect to a Eurocurrency Advance
or a Eurocurrency Loan, a period of one, two, three or six months commencing on
a Business Day selected by the applicable Borrower pursuant to this Agreement.
Such Interest Periods under clauses (ii) and (iii) shall end on (but exclude)
the day which corresponds numerically to such date of commencement one, two,
three or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new month, such Interest Period shall end on the
immediately preceding Business Day.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes, substantially in the form of Exhibit F hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 2.1.3(iii).
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
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"LENDERS" means the financial institutions listed on the signature pages
of this Agreement and their respective successors and assigns including, without
limitation, any Lender which becomes party to this Agreement pursuant to Section
13.3. Unless the context otherwise requires, the term Lender shall include
Alternate Currency Banks.
"LENDING INSTALLATION" means any office, branch, subsidiary or affiliate
of any Lender or the Administrative Agent.
"LEVEL I STATUS" is defined in Section 2.3.
"LEVEL II STATUS" is defined in Section 2.3.
"LEVEL III STATUS" is defined in Section 2.3.
"LEVEL IV STATUS" is defined in Section 2.3.
"LEVEL V STATUS" is defined in Section 2.3.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).
"LOAN" means, (i) with respect to a Lender, such Lender's portion of any
Revolving Advance, (ii) with respect to any Alternate Currency Bank, such
Alternate Currency Bank's portion of any Alternate Currency Advance, and (iii)
with respect to any Lender, such Lender's Bid Loan, and (iv) collectively, with
respect to all Lenders, all Revolving Loans, Alternate Currency Loans and
Competitive Bid Loans.
"LOAN DOCUMENTS" means this Agreement, any Notes issued pursuant to
Section 2.5.8, the Assumption Letters and all Alternate Currency Addenda.
"MATERIAL ADVERSE CHANGE" means any change in the business, property,
condition (financial or otherwise) or results of operations or prospects of the
Company and its Subsidiaries taken as a whole which could reasonably be expected
to have a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the business,
property, condition (financial or otherwise) or results of operations or
prospects of the Company and its Subsidiaries taken as a whole, the ability of
any of the Borrowers to perform their obligations under the Loan Documents, or
the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders thereunder.
"MATERIAL DEBT" means Debt (other than the Obligations hereunder or under
the Notes) or payment or reimbursement obligations with respect to letters of
credit of the Borrower and/or one or more of its Subsidiaries, arising in one or
more related or unrelated transactions, in an aggregate principal or face amount
exceeding $15,000,000.
14
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of Debt,
payment obligations in respect of Hedging Obligations and/or payment or
reimbursement obligations with respect to letters of credit of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $15,000,000.
"MATERIAL SUBSIDIARY" means, at any time any Subsidiary which as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"MAXIMUM ALTERNATE CURRENCY AMOUNT" means Seventy-Five Million Dollars
($75,000,000).
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any rating agency
which is generally recognized as a successor thereto.
"XXXXX'X RATING" is defined in Section 2.3.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA subject to Title IV of ERISA and which is contributed to by
either the Company or any ERISA Affiliate or with respect to which the Company
or any ERISA Affiliate has potential liability.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"NEW CURRENCY" is defined in Section 2.5.7.
"NON-U.S. BORROWER" is defined in Section 3.2(b).
--------------
"NOTE" means any promissory note issued by any Borrower at the request of
a Lender pursuant to Section 2.5.8 in the form supplied by the Administrative
Agent.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3.2.
"OBLIGATIONS" means all Loans, Advances, debts, liabilities, obligations,
covenants and duties owing by the Company or any of its Subsidiaries to the
Administrative Agent, any Lender, any Affiliate of the Administrative Agent, any
Lender or any indemnitee, of any kind or nature, present or future, arising
under this Agreement, the Notes issued hereunder or any other Loan Document,
whether or not evidenced by any note, guaranty or other instrument, whether or
not for the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification, or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
The term includes, without limitation, all interest charges, expenses, fees,
attorneys' fees and disbursements, paralegals' fees, and any other sum
chargeable to the Company or any of its Subsidiaries under this Agreement or any
other Loan Document.
15
"ORIGINAL CURRENCY" is defined in Section 2.5.7.
"OTHER TAXES" is defined in Section 3.1(i).
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the function thereof.
"PAYMENT DATE" means the last Business Day of each calendar month.
"PERCENTAGE" means, with respect to any Lender, the percentage obtained by
dividing (A) the sum of such Lender's Commitment at such time (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement)
by (B) the Aggregate Commitment at such time; provided, however, if all of the
Commitments are terminated pursuant to the terms of this Agreement, then
"Percentage" means the percentage obtained by dividing (i) such Lender's Loans
(including Competitive Bid Loans) by (ii) the aggregate amount of all Loans
(including Competitive Bid Loans).
"PERSON" means any corporation, limited liability company, natural person,
firm, joint venture, partnership, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"PLAN" means any employee benefit plan defined in Section 3(3) of ERISA in
respect of which the Company or any ERISA Affiliate is an "employer" as defined
in Section 3(5) of ERISA or with respect to which the Company or any ERISA
Affiliate has any potential liability.
"PURCHASERS" is defined in Section 13.3.1.
"REFUNDING BORROWING" means (a) a borrowing consisting of Alternate
Currency Loans or Revolving Loans which, after application of the proceeds
thereof, results in no net increase in the aggregate outstanding principal
amount of such Loans made by any Lender or (b) a borrowing consisting of
Competitive Bid Loans which, after application of the proceeds thereof, results
in no net increase in the outstanding principal amount of such Loans made by any
Lender.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of Securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATIONS U AND X" means Regulations U and X of the Board of Governors
of the Federal Reserve System from time to time in effect and shall include any
successor or other regulations or official interpretations of said Board of
Governors relating to the extension of
16
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"REPORTABLE EVENT" means any of the events described in Section 4043 of
ERISA other than an event for which the 30-day notice requirement has been
waived by regulation; provided, however, that events described in ERISA
ss.4043(c)(1) or (5) shall be a Reportable Event regardless of such waiver.
"REQUEST FOR A NEW ALTERNATE CURRENCY FACILITY" shall have the meaning
ascribed thereto in Section 2.1.2(ii).
"REQUIRED LENDERS" means Lenders having, in the aggregate, Percentages of
at least sixty-six and two-thirds percent (66-2/3%).
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"REVOLVING ADVANCE" means a borrowing hereunder (or conversion or
continuation thereof) consisting of the aggregate amount of the several
Revolving Loans made by the Lenders to the Company pursuant to Section 2.1.1 of
the same Type and, in the case of Eurocurrency Advances, denominated in the same
currency and for the same Interest Period.
"REVOLVING LOAN" is defined in Section 2.1.1.
"S&P" means Standard and Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., or any rating agency which is generally recognized
as a successor thereto.
"S&P RATING" is defined in Section 2.3.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"STATUS" is defined in Section 2.3.
"STERLING" means the lawful currency of England.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise
17
expressly provided, all references herein to a "SUBSIDIARY" shall mean a
Subsidiary of the Company.
"SUBSTANTIAL PORTION" means, with respect to the Property of the Company
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made.
"SYNDICATED CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the Dollar Amount of the aggregate unpaid principal balance of the Revolving
Loans at such time, plus (ii) the Dollar Amount of the aggregate unpaid
principal balance of the Alternate Currency Loans at such time.
"SYNTHETIC LEASE LIABILITIES" of a Person means any liability under any
tax retention operating lease or so-called "synthetic" lease transaction, or any
obligations arising with respect to any other similar transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries (other than leases which do not have an attributable interest
component that are not Capitalized Leases).
"TAXES" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities
(including but not limited to interest and penalties) with respect to the
foregoing, imposed by any Governmental Authority, but excluding Excluded Taxes.
"TERMINATION DATE" means the earlier of (i) November 18, 2003 and (ii) the
date the Loans may be accelerated in accordance with this Agreement.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any ERISA Affiliate from a
Benefit Plan during a plan year in which the Company or such ERISA Affiliate was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of 20% of
Benefit Plan participants who are employees of the Company or any ERISA
Affiliate; (iii) the imposition of an obligation on the Company or any ERISA
Affiliate under Section 4041 of ERISA to provide affected parties written notice
of intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or a
Foreign Pension Plan; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; (vi) a foreign governmental authority
shall appoint or institute proceedings to appoint a trustee to administer any
Foreign Pension Plan; or (vii) the partial or complete withdrawal of the Company
or any ERISA Affiliate from a Multiemployer Plan or a Foreign Pension Plan.
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"TOTAL CAPITALIZATION" means, at any date, the sum of Consolidated Debt
and Consolidated Net Worth as of such date.
"TYPE" means, with respect to any Loan or Advance, its nature as an
Alternate Base Rate Advance or Loan or Eurocurrency Advance or Loan or, in the
case of any Competitive Bid Advance or Loan, its nature as an Absolute Rate
Advance or Loan or an Indexed Bid Rate Advance or Loan.
"UNMATURED DEFAULT" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"U.S. GAAP" means accounting principles generally accepted in the United
States of America as recommended by the Financial Accounting Standards Board as
in effect as of the Effective Date applied consistently with the audited
financial statements of the Company and its Consolidated Subsidiaries for the
year ended December 31, 1997.
"WHOLLY-OWNED," when used in connection with any Subsidiary, means (i) any
Subsidiary all of the outstanding voting securities of which (other than nominal
shares consisting of directors' qualifying shares) shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated costs,
problems and uncertainties associated with the inability of certain computer
applications and embedded systems to effectively handle data, including dates,
on and after January 1, 2000, as it affects the business, operations, and
financial condition of such Person, and, to the best of such Person's knowledge,
such Person's material customers, suppliers and vendors, but excluding any such
costs, problems or uncertainties associated with computer applications and
embedded systems of any Governmental Authority.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
1.2. Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with U.S. GAAP.
1.3. Rounding and Other Consequential Changes. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in the Euro as the Administrative Agent
may from time to time specify unless such National Currency Unit
19
remains readily available and the applicable Borrower and the Administrative
Agent agree to the continued use of such National Currency Unit instead of the
Euro.
ARTICLE II: THE LOAN FACILITIES
2.1. The Revolving Loan Facility to the Company.
2.1.1. Revolving Loans. (i) Upon the satisfaction of the applicable
conditions precedent set forth in Sections 4.1, 4.2 and 4.3, from and including
the date of this Agreement and prior to the Termination Date, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement (including, without limitation, the terms and conditions of Section
2.5.11 and Section 8.1 relating to the reduction, suspension or termination of
the Aggregate Commitment), to make revolving loans (each individually, a
"REVOLVING LOAN" and, collectively, the "REVOLVING LOANS") in one or more Agreed
Currencies to the Company from time to time in a Dollar Amount not to exceed
such Lender's Percentage of the Available Amount at such time; provided,
however, that the Aggregate Commitment shall be deemed used from time to time to
the extent of the aggregate amount of the Competitive Bid Loans then outstanding
(such deemed use of the aggregate amount of the Commitments being a "COMPETITIVE
BID REDUCTION"), and such deemed use in each case of the Aggregate Commitment
shall be applied to the Lenders ratably according to their respective
Commitments; provided, further, that each Revolving Loan made on or after the
Euro Implementation Date shall be made in the Euro if such Revolving Loan would,
but for this provision, be capable of being made in either the Euro or the
National Currency Unit requested by the Company unless otherwise consented to by
the Administrative Agent. Subject to the terms of this Agreement (including,
without limitation, the terms and conditions of Sections 2.5.11 and 8.1 relating
to the reduction, suspension or termination of the Aggregate Commitment), the
Company may borrow, repay and reborrow Revolving Loans at any time prior to the
Termination Date. The Revolving Loans made on the Effective Date or on or before
the third (3rd) Business Day thereafter shall initially be Alternate Base Rate
Loans and thereafter may be continued as Alternate Base Rate Loans or converted
into Eurocurrency Loans in the manner provided in Section 2.2.3. Unless earlier
terminated in accordance with the terms and conditions of this Agreement, the
Commitments of the Lenders to lend hereunder shall expire on the Termination
Date. The proceeds of all Revolving Loans made under this Section 2.1.1 shall be
used in accordance with the terms of Section 6.2. All outstanding Revolving
Loans shall be paid in full by the Company on the Termination Date.
(ii) Borrowing Notice. When the Company desires to borrow under this
Section 2.1.1, a Financial Officer shall deliver to the Administrative Agent a
Borrowing Notice, signed by it, specifying that the Company is requesting a
Revolving Loan pursuant to this Section 2.1.1. Any Borrowing Notice given
pursuant to this Section 2.1.1 shall be irrevocable.
(iii) Maximum Revolving Credit Amount. At no time shall the sum of (a) the
Syndicated Credit Obligations plus (b) the outstanding principal balance of all
Competitive Bid Loans exceed the Aggregate Commitment.
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(iv) Making of Revolving Loans. Promptly after receipt of the Borrowing
Notice under Section 2.1.1(ii) in respect of Revolving Loans, the Administrative
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission, of the proposed Advance. Each Lender shall make available its
Revolving Loan in accordance with the terms of Section 2.5.1. The Administrative
Agent will make the funds so received from the Lenders available to the Company
in accordance with the terms of Section 2.5.1 and shall disburse such proceeds
in accordance with the Company's disbursement instructions set forth in such
Borrowing Notice. The failure of any Lender to deposit the amount described
above with the Administrative Agent on the applicable Borrowing Date shall not
relieve any other Lender of its obligations hereunder to make its Revolving Loan
on such Borrowing Date.
2.1.2. Alternate Currency Loans.
(i) Upon the execution of an applicable Alternate Currency Addendum
and upon the satisfaction of the conditions precedent set forth in Sections 4.1,
4.2 and 4.3 hereof and set forth in such applicable Alternate Currency Addendum,
from and including the later of the date of this Agreement and the date of
execution of the applicable Alternate Currency Addendum and prior to the
Termination Date (unless an earlier termination date shall be specified in the
applicable Alternate Currency Addendum), each of the Lenders in its capacity as
an Alternate Currency Bank agrees, on the terms and conditions set forth in this
Agreement and in the applicable Alternate Currency Addendum, to make Alternate
Currency Loans under such Alternate Currency Addendum to the applicable Borrower
or Borrowers party to such Alternate Currency Addendum from time to time in the
applicable Alternate Currency, in an amount not to exceed the lesser of (i) such
Alternate Currency Bank's applicable Alternate Currency Commitment and (ii) such
Lender's Percentage of the Available Amount; provided, however, at no time shall
the Dollar Amount of the outstanding principal amount of the Alternate Currency
Loans and Competitive Bid Loans for all Alternate Currencies other than Dollars
exceed the Maximum Alternate Currency Amount other than as a result of currency
fluctuations and then only to the extent permitted in Section 2.5.3.(B)(i)(d).
For all purposes of this Section 2.1.2, where reference is made to a Lender's
Percentage, where a Lender has designated an Affiliate, branch or agency of it
to act as the Alternate Currency Bank, it shall be the designating Lender's
Percentage which is utilized for purposes hereof. Each Alternate Currency
Advance under this Section 2.1.2. shall consist of Alternate Currency Loans made
by each Alternate Currency Bank ratably in proportion to such Lender's
Percentage. Subject to the terms of this Agreement and the applicable Alternate
Currency Addendum, the applicable Borrowers may borrow, repay and reborrow
Alternate Currency Loans at any time prior to the Termination Date (unless an
earlier termination date shall be specified in the applicable Alternate Currency
Addendum). On the Termination Date (unless an earlier termination date shall be
specified in the applicable Alternate Currency Addendum), the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the Termination Date (unless an earlier
termination date shall be specified in the applicable Alternate Currency
Addendum) prepayments of the Alternate Currency Advances shall be made by the
applicable Borrower if and to the extent required in Section 2.5.3.(B).
21
(ii) Borrowing Notice. When the applicable Borrower desires to borrow
under this Section 2.1.2., a Financial Officer shall deliver to the applicable
Alternate Currency Agent a Borrowing Notice, signed by it, specifying that such
Borrower is requesting an Alternate Currency Advance pursuant to this Section
2.1.2. Any Borrowing Notice given pursuant to this Section 2.1.2. shall be
irrevocable.
(iii) Additional Alternate Currency Commitments. The Company may, by
written notice to the Administrative Agent, request the establishment of
Alternate Currency Commitments in additional Alternate Currencies agreed to by
all of the Lenders other than the Alternate Currencies set forth in clause (i)
of the definition thereof, provided the Dollar Amount of the aggregate amount of
all of the Alternate Currency Loans shall not exceed the Maximum Alternate
Currency Amount ("REQUEST FOR A NEW ALTERNATE CURRENCY FACILITY"). The
Administrative Agent will promptly forward to the Lenders any Request for a New
Alternate Currency Facility received from the Company; provided each Lender
shall be deemed not to have agreed to such request unless its written consent
thereto has been received by the Administrative Agent within ten (10) Business
Days from the date of such notification by the Administrative Agent to such
Lender. In the event that all the Lenders consent to such Request for a New
Alternate Currency Facility, upon execution of the applicable Alternate Currency
Addendum and the other documents, instruments and agreements required pursuant
to this Agreement and such Alternate Currency Addendum, the Alternate Currency
Advances with respect thereto may be made.
(iv) Termination. Except as otherwise required by applicable law, in no
event shall the Alternate Currency Agent or Alternate Currency Banks have the
right to accelerate the Alternate Currency Loans outstanding under any Alternate
Currency Addendum or to terminate their commitments (if any) thereunder to make
Alternate Currency Loans prior to the Termination Date, except that such
Alternate Currency Agent and Alternate Currency Banks shall, in each case, have
such rights upon an acceleration of the Loans and a termination of the
Commitments pursuant to Article VIII.
(v) Statements. Each Alternate Currency Agent shall furnish to the
Administrative Agent and the applicable Alternate Currency Banks, not less
frequently than monthly, and at any other time at the reasonable request of the
Administrative Agent, a statement setting forth the outstanding Alternate
Currency Loans made and repaid during the period since the last such report
under such Alternate Currency Addendum.
(vi) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the essence. Such
Alternate Currency shall be the currency of account and payment of such Loans
under this Agreement and the Notes issued hereunder. Notwithstanding anything in
this Agreement, the obligation of the applicable Borrower in respect of such
Loans shall not be discharged by an amount paid in any other currency or at
another place, whether pursuant to a judgment or otherwise, to the extent the
amount so paid, on prompt conversion into the applicable Alternate Currency and
transfer to such Lender under normal banking procedure, does not yield the
amount of such Alternate Currency due under this
22
Agreement and the Notes issued hereunder. In the event that any payment, whether
pursuant to a judgment or otherwise, upon conversion and transfer, does not
result in payment of the amount of such Alternate Currency due under this
Agreement and the Notes issued hereunder, such Lender shall have an independent
cause of action against the applicable Borrowers for the currency deficit.
2.1.3. Competitive Bid Advances.
(i) Competitive Bid Option; Repayment of Competitive Bid Advances;
Interest on Competitive Bid Advances. In addition to Revolving Advances and
Alternate Currency Advances pursuant to Sections 2.1.1 and 2.1.2, but subject to
the terms and conditions of this Agreement (including, without limitation, the
limitations set forth in Section 2.1.1(iii) as to the maximum aggregate
principal amount of all outstanding Obligations hereunder), the Borrowers may,
as set forth in this Section 2.1.3, request the Lenders, prior to the
Termination Date, to make offers to make Competitive Bid Advances in Dollars or
any other Agreed Currency to the applicable requesting Borrower. Each Lender
may, but shall have no obligation to, make such offers and the applicable
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.1.3. Each Competitive Bid Advance shall be
repaid in full by the applicable Borrower on the last day of the Interest Period
applicable thereto. Competitive Bid Advances may be prepaid only to the extent
set forth in the applicable Competitive Bid Quote Request. Interest accrued on
each Competitive Bid Advance shall be payable in accordance with the terms of
Section 2.5.6; provided unless otherwise specified in the applicable Competitive
Bid Quote Request, interest on all Competitive Bid Advances shall be calculated
for actual days elapsed on the basis of a 360-day year.
(ii) Competitive Bid Quote Request. When a Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.1.3, the
Borrower shall transmit to the Administrative Agent by telex or facsimile
transmission a Competitive Bid Quote Request so as to be received not later
than:
(w) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 10:00 a.m.
(London time) at least five Business Days prior to the Borrowing
Date proposed therein;
(x) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 10:00 a.m. (Chicago time) at least four
Business Days prior to the Borrowing Date proposed therein;
(y) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 9:00 a.m.
(London time) at least three Business Days prior to the Borrowing
Date proposed therein; or
(z) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 10:00 a.m.(Chicago time) at least one
Business Day prior to the Borrowing Date proposed therein;
23
or, in any case, such other time or date as the applicable Borrower and the
Administrative Agent shall have mutually agreed upon and shall have notified to
the Lenders not later than the date of the Competitive Bid Quote Request for the
first Indexed Bid Rate Auction or Absolute Rate Auction for which such change is
to be effective, specifying:
(a) the proposed Borrowing Date for the proposed Competitive Bid
Advance;
(b) the aggregate principal amount of such Competitive Bid Advance,
which shall be in the minimum amount of $5,000,000 (and in multiples
of $1,000,000 if in excess thereof);
(c) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both;
(d) the Interest Period applicable thereto;
(e) the Agreed Currency in which such Competitive Bid Advance is to
be made;
(f) the applicable Borrower for such Competitive Bid Advance;
(g) whether or not the Competitive Bid Advance requested shall be
subject to prepayment; and
(h) where the Agreed Currency is other than Dollars or the Borrower is
other than the Company, any other specified provisions applicable
thereto (i.e., specifying an alternative index for Indexed Bid Rate
Loans, special withholding tax requirements, or any other provisions
applicable as a result of use of such Agreed Currency or
specification of such Borrower).
A Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period, for more than one Agreed Currency and for an Indexed Bid Rate
Auction and an Absolute Rate Auction in a single Competitive Bid Quote Request.
No Competitive Bid Quote Request shall be given within five Business Days (or,
upon reasonable prior notice to the Lenders, such other number of days as the
applicable Borrower and the Administrative Agent may agree upon) of any other
Competitive Bid Quote Request. A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit E hereto shall be rejected, and
the Administrative Agent shall promptly notify the applicable Borrower of such
rejection by telex or facsimile transmission.
(iii) Invitation for Competitive Bid Quotes. Promptly upon receipt
of a Competitive Bid Quote Request that is not rejected pursuant to Section
2.1.3(ii), the Administrative Agent shall send to each of the Lenders by telex
or facsimile transmission an Invitation for Competitive Bid Quotes, which shall
constitute an invitation by the Borrower to each Lender to submit Competitive
Bid Quotes offering to make the Competitive Bid Loans to which such Competitive
Bid Quote Request relates in accordance with this Section 2.1.3.
24
(iv) Submission and Contents of Competitive Bid Quotes.
(a) Each Lender may, in its sole discretion, submit a Competitive
Bid Quote containing an offer or offers to make Competitive Bid Loans in
response to any Invitation for Competitive Bid Quotes. Each Competitive
Bid Quote must comply with the requirements of this Section 2.1.3(iv) and
must be submitted to the Administrative Agent by telex or facsimile
transmission at its offices specified in or pursuant to Article XIV not
later than:
(i) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 1:00 p.m.
(London time) at least four Business Days prior to the Borrowing
Date proposed therein;
(ii) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 8:30 a.m. (Chicago time) at least two
Business Days prior to the Borrowing Date proposed therein;
(iii) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 1:00 p.m.
(London time) at least two Business Days prior to the Borrowing Date
proposed therein; or
(iv) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 9:00 a.m.(Chicago time) on the proposed
Borrowing Date;
or, in any such case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed upon and shall have notified to
the Lenders not later than the date of the first Indexed Bid Rate Auction or
Absolute Rate Auction for which such change is to be effective; provided that
Competitive Bid Quotes submitted by the Administrative Agent (or any Affiliate
of the Administrative Agent) in the capacity of a Lender may be submitted, and
may only be submitted, if the Administrative Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one-half hour prior to the deadline for the other Lenders, in the case
of an Indexed Bid Rate Auction or an Absolute Rate Auction denominated in an
Agreed Currency other than Dollars, or (y) 15 minutes prior to the deadline for
the other Lenders, in the case of an Absolute Rate Auction denominated in
Dollars. Subject to Articles IV and VIII, any Competitive Bid Quote so made
shall be irrevocable except with the written consent of the Administrative Agent
given on the instructions of the applicable Borrower.
(b) Each Competitive Bid Quote shall in any case specify:
(1) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid
Quotes;
(2) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may
be greater than, less than or equal to the Commitment of the
quoting Lender, but in no case greater than the unutilized
Aggregate Commitment, (2) must be at least
25
$5,000,000 (and an integral multiple of $1,000,000 if in
excess thereof), and (3) may not exceed the principal amount
of Competitive Bid Loans for which offers were requested and
(4) may be subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which offers
being made by such quoting Lender may be accepted;
(4) in the case of an Indexed Bid Rate Auction, the Competitive
Bid Margin offered for each such Competitive Bid Loan;
(5) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(6) the minimum or maximum amount, if any, of the Competitive
Bid Loan which may be accepted by the applicable Borrower;
(7) the applicable Interest Period;
(8) the identity of the quoting Lender; and
(9) where the Agreed Currency is other than Dollars or the
Borrower is other than the Company, any other specified
provisions applicable thereto (i.e., specifying an alternative
index for Indexed Bid Rate Loans, special withholding tax
requirements, or any other provisions applicable as a result
of use of such Agreed Currency or specification of such
Borrower).
(c) The Administrative Agent shall reject any Competitive Bid
Quote that:
(1) is not substantially in the form of Exhibit D hereto or
does not specify all of the information required by clause
(b) above;
(2) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit D hereto or
permitted as a result of clause (b)(9) above;
(3) other than as set forth in clause (b)(9) above, proposes terms
other than or in addition to those set forth in the applicable
Invitation for Competitive Bid Quotes; or
(4) arrives after the time set forth in Section 2.1.3(iv)(a).
(d) If any Competitive Bid Quote shall be rejected pursuant to
Section 2.1.3(iv)(c), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practicable.
(v) Notice to Borrower. The Administrative Agent shall promptly
notify the applicable Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.1.3(iv) and (ii) of
any Competitive Bid Quote that is in accordance with Section 2.1.3(iv) and
amends, modifies or is otherwise inconsistent with a previous
26
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's notice to
the Borrower shall specify the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Quote Request and the respective principal amounts
and Competitive Bid Margins or Absolute Rates, as the case may be, so offered.
(vi) Acceptance and Notice by Borrower. Subject to the receipt of
the notice from the Administrative Agent referred to in Section 2.1.3(v), not
later than:
(i) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 10:00 a.m.
(London time) at least three Business Days prior to the Borrowing
Date proposed therein;
(ii) for an INDEXED BID RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 9:30 a.m. (Chicago time) at least two
Business Days prior to the Borrowing Date proposed therein;
(iii) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in any AGREED CURRENCY OTHER THAN DOLLARS, 2:00 p.m.
(London time) at least two Business Days prior to the Borrowing Date
proposed therein; or
(iv) for an ABSOLUTE RATE AUCTION for Competitive Bid Advances
denominated in DOLLARS, 10:00 a.m.(Chicago time) on the proposed
Borrowing Date;
or any such case, such other time or date as the Company and the Administrative
Agent shall have mutually agreed upon and shall have notified to the Lenders not
later than the date of the Competitive Bid Quote Request for the first Indexed
Bid Rate Auction or Absolute Rate Auction for which such change is to be
effective, the applicable Borrower shall notify the Administrative Agent of such
Borrower's acceptance or rejection of the offers so notified to it pursuant to
Section 2.1.3(v); provided, however, that the failure by the applicable Borrower
to give such notice to the Administrative Agent shall be deemed to be a
rejection by such Borrower of all such offers. In the case of acceptance, such
notice (a "COMPETITIVE BID BORROWING NOTICE") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
applicable Borrower may accept or reject any Competitive Bid Quote in whole or
in part; provided that:
(A) the aggregate principal amount of each Competitive Bid Advance may
not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(B) the principal amount of each Competitive Bid Advance must be at
least $5,000,000 (and an integral multiple of $1,000,000 if in
excess thereof);
27
(C) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Absolute Rates, as the case may be; and
(D) the applicable Borrower may not accept any offer of the type
described in Section 2.1.3(iv)(c) or that otherwise fails to comply
with the requirements of this Agreement in respect of obtaining a
Competitive Bid Loan under this Agreement.
(vii) Allocation by the Administrative Agent. If offers are made by
two or more Lenders with the same Competitive Bid Margins or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are permitted to be accepted for the related Interest
Period and currency, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in such multiples as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers; provided, however, that no Lender shall be
allocated a portion of any Competitive Bid Advance which is less than the
minimum amount which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive Bid Loans
shall be conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event by 11:00 a.m. (Chicago to London time, as
applicable) on the third Business Day prior to the Borrowing Date, in the case
of Indexed Bid Rate Advances and Absolute Rate Advances denominated in an agreed
currency other than Dollars, and by 11:00 a.m.(Chicago time) on the same
Business Day, in the case of Absolute Rate Advances, notify each Lender of its
receipt of a Competitive Bid Borrowing Notice and the aggregate principal amount
of each Competitive Bid Advance allocated to each participating Lender.
(viii) Administration Fee. The Company hereby agrees to pay to the
Administrative Agent an administration fee per Competitive Bid Quote Request
transmitted by any Borrower to the Administrative Agent pursuant to Section
2.1.3(ii) in the amounts and at the times specified in the Fee Letter.
2.2. Types and Interest Periods.
2.2.1. Types of Advances. The Revolving Loans may be Alternate Base Rate
Loans or Eurocurrency Loans, or a combination thereof, selected by the Company
in accordance with Sections 2.2.2 and 2.2.3. The applicable interest rates,
Types and Interest Periods applicable to the Alternate Currency Loans shall be
as set forth in the applicable Alternate Currency Addendum.
2.2.2. Method of Selecting Types and Interest Periods for New Advances.
The applicable Borrower shall select the Type of Advance and, in the case of
each Alternate Currency Advance and Eurocurrency Advance, the Interest Period
applicable to each Advance from time to time. The applicable Borrower shall give
the Administrative Agent or applicable Alternate Currency Agent an irrevocable
Borrowing Notice, or, if such Borrower is a Borrowing Subsidiary, the Company
may on behalf of such Borrowing Subsidiary give a Borrowing Notice, not later
than 11:00 a.m. (Chicago time) (x) on the Borrowing Date for each Alternate Base
Rate
28
Advance, (y) three Business Days before the Borrowing Date for each Eurocurrency
Advance in Dollars, and (z) four Business Days before the Borrowing Date for
each Eurocurrency Advance in an Agreed Currency other than Dollars and each
Alternate Currency Advance (or such other period as may be specified in the
applicable Alternate Currency Addendum), provided that there shall be no more
than six (6) Interest Periods in effect with respect to all of the Loans at any
time. A Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such Advance;
(ii) the aggregate amount and the currency of such Advance, provided,
that, if any Advance made (or to be made) on or after the Euro
Implementation Date would, but for this provision, be capable of
being made either in the Euro or in the applicable National Currency
Unit requested by the applicable Borrower, such Advance shall be
made in the Euro;
(iii) the Type of Advance selected and in respect of all Loans, the
currency thereof;
(iv) whether such borrowing is pursuant to a Revolving Loan or Alternate
Currency Loan;
(v) in the case of each Alternate Currency Advance or Eurocurrency
Advance, the Interest Period applicable thereto; and
(vi) the identity of the applicable Borrower.
2.2.3. Conversion and Continuation of Outstanding Advances. Alternate Base
Rate Advances shall continue as Alternate Base Rate Advances unless and until
such Alternate Base Rate Advances are converted into Eurocurrency Advances. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance until the end of
the then applicable Interest Period therefor, at which time such Eurocurrency
Advance shall be automatically converted into an Alternate Base Rate Advance
unless the Company shall have given the Administrative Agent an irrevocable
notice (a "CONVERSION/CONTINUATION NOTICE") requesting that, at the end of such
Interest Period, such Eurocurrency Advance either continue as a Eurocurrency
Advance for the same or another Interest Period or be converted into an
Alternate Base Rate Advance. Subject to the terms of Sections 2.2.1 and 2.5.2,
the Company may elect from time to time to convert all or any part of an Advance
of any Type (other than Alternate Currency Advances) into any other Type or
Types of Advances (other than Alternate Currency Advances); provided that any
conversion of any Eurocurrency Advance shall be made on, and only on, the last
day of the Interest Period applicable thereto. The Company shall give the
Administrative Agent the Conversion/Continuation Notice of each conversion of an
Advance or continuation of a Eurocurrency Advance not later than 10:00 a.m.
(Chicago time) at least one Business Day, in the case of a conversion into an
Alternate Base Rate Advance, or three Business Days, in the case of a conversion
into or continuation of a Eurocurrency Advance, prior to the date of the
requested conversion or continuation, specifying:
29
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance is to
be converted or continued and, in the case of a conversion into or
continuation of a Eurocurrency Advance, the duration of the Interest
Period applicable thereto.
2.3. Applicable Margin. The Applicable Margins set forth below, with
respect to each Advance (other than Alternate Currency Advances which shall be
governed by the applicable Alternate Currency Addendum) and the applicable fee
rate for facility fees and utilization fees payable hereunder, shall be subject
to adjustment (upwards or downwards, as appropriate) in accordance with the
table set forth below based on the Company's Status shall be determined from its
then-current Xxxxx'x and S&P Ratings. The credit rating in effect on any date
for all purposes is that in effect at the close of business on such date. If at
any time the Borrower has no Xxxxx'x Rating or no S&P Rating, Level V Status
shall exist. If the Borrower is split-rated and the ratings differential is one
level, the higher rating will apply. If the Borrower is split-rated and the
ratings differential is two levels, the intermediate rating at the midpoint will
apply. If the Borrower is split-rated and the ratings differential is more than
two levels, the rating that is one level above the lowest rating will apply.
-------------------------------------------------------------------------------
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
-------------------------------------------------------------------------------
EUROCURRENCY 0.195% 0.225% 0.300% 0.350% 0.550%
MARGIN
-------------------------------------------------------------------------------
ALTERNATE BASE 0% 0% 0% 0% 0%
RATE
-------------------------------------------------------------------------------
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
RATE STATUS STATUS STATUS STATUS STATUS
-------------------------------------------------------------------------------
UTILIZATION FEE 0% 0% 0% 0.05% 0.10%
-------------------------------------------------------------------------------
FACILITY FEE 0.080% 0.100% 0.125% 0.150% 0.200%
-------------------------------------------------------------------------------
For the purposes of this Agreement, the Company's Status will be determined
based on the following definitions:
"LEVEL I STATUS" exists at any date if, on such date, the Company's
Xxxxx'x Rating is A3 or better or the Company's S&P Rating is A- or
better.
"LEVEL II STATUS" exists at any date if, on such date, (i) the
Company has not qualified for Level I Status and (ii) the Company's
Xxxxx'x Rating is Baa1 or better or the Company's S&P Rating is BBB+ or
better.
30
"LEVEL III STATUS" exists at any date if, on such date, (i) the
Company has not qualified for Level I Status or Level II Status and (ii)
the Company's Xxxxx'x Rating is Baa2 or better or the Company's S&P Rating
is BBB or better.
"LEVEL IV STATUS" exists at any date if, on such date (i) the
Borrower has not qualified for Level I Status, Level II Status or Level
III Status and (ii) the Company's Xxxxx'x Rating is Baa3 or better or the
Company's S&P Rating is BBB- or better.
"LEVEL V STATUS" exists at any date if, on such date, the Company
has not qualified for Level I Status, Level II Status, Level III Status or
Level IV Status.
"XXXXX'X RATING" means, at any time, the rating issued by Xxxxx'x
and then in effect with respect to the Company's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P RATING" means, at any time, the rating issued by S&P and then
in effect with respect to the Company's senior unsecured long-term debt
securities without third-party credit enhancement.
"STATUS" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
2.4. Fees. The Company and the Borrowing Subsidiaries agree to pay the
following fees:
2.4.1. Facility Fee. The Company and the Borrowing Subsidiaries hereby
jointly and severally agree to pay to the Administrative Agent for the ratable
account of each Lender, for the period from the date hereof to and including the
Termination Date, a facility fee at the applicable rate per annum equal to the
annual percentage rate indicated as the applicable facility fee in the table set
forth in Section 2.3 changing as and when the Company's Status changes, payable
on the average daily amount of such Lender's Commitment (without regard to
utilization). All accrued facility fees shall be payable quarterly in arrears
during the term of each Lender's Commitment hereunder, in arrears, not later
than the last day of each March, June, September and December, commencing
December 31, 1998 and, in the case of each Lender, on the effective date of any
termination of the obligations of such Lender to make Loans hereunder, and
facility fees shall cease to accrue thereafter.
2.4.2. Utilization Fee. If, at the end of any fiscal quarter, the average
daily aggregate principal amount of outstanding Revolving Credit Obligations,
Alternate Currency Loans and Competitive Bid Loans during such quarter exceeded
fifty percent (50%) of the average daily amount of the Aggregate Commitment
during such quarter, the Company and the Borrowing Subsidiaries hereby jointly
and severally agree to pay to the Administrative Agent, for the ratable account
of each Lender in accordance with its Percentage, a utilization fee at the
respective rates per annum set forth in the table set forth in Section 2.3 on
the average daily aggregate principal amount of all Revolving Credit
Obligations, Alternate Currency Loans and Competitive Bid Loans during such
quarter, payable quarterly, in arrears, not later than the last day of each
31
March, June, September and December, commencing December 31, 1998, and on the
Termination Date or earlier termination of the Commitments and repayment in full
of the Obligations. For purposes of calculating the utilization fee hereunder,
the principal amount of each Loan made in a currency other than Dollars shall be
the Dollar Amount of such Loan as determined under clause (ii) of the definition
herein of "Dollar Amount".
2.4.3. Administrative Agent Fees. The Company agrees to pay certain fees
to the Administrative Agent and the Arranger, solely for their account (to be
allocated among the Administrative Agent and the Arranger in their discretion),
on the dates and in the amounts set forth in the fee letter among the Company,
the Arranger and The First National Bank of Chicago, dated October 7, 1998 (the
"FEE LETTER").
2.5. General Facility Terms.
2.5.1. Method of Borrowing. (i) Promptly after receipt of a Borrowing
Notice with respect to Revolving Loans and Alternate Currency Loans, the
Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission, of the proposed Advance. On each Borrowing Date
with respect to Revolving Loans, each Lender shall make available its Revolving
Loan, as applicable, (x) if such Loan is denominated in Dollars, not later than
2:00 p.m., Chicago time, in Federal or other funds immediately available to the
Administrative Agent, in Chicago, Illinois at its address specified in or
pursuant to Article XIV and, (y) if such Loan is denominated in another
currency, not later than 12:00 noon, local time in the city of the
Administrative Agent's Eurocurrency Payment Office for such currency, in such
funds as may then be customary for the settlement of international transactions
in such currency in the city of and at the address of the Administrative Agent's
Eurocurrency Payment Office for such currency. Unless the Administrative Agent
determines that any applicable condition specified in Article IV has not been
satisfied, the Administrative Agent will make the funds so received from the
Lenders available to the Company at the Administrative Agent's aforesaid address
not later than 3:00 p.m. local time.
(ii) Subject to the procedures set forth in the applicable Alternate
Currency Addendum, each Alternate Currency Bank shall make available its
Alternate Currency Loan or Loans, in funds immediately available to the
Alternate Currency Agent at its office designated in the Alternate Currency
Addendum for payments of such Alternate Currency in the Alternate Currency. The
Alternate Currency Agent will promptly make the funds so received from the
Alternate Currency Banks available to the applicable Borrower. Promptly upon any
such disbursement of an Alternate Currency Advance, the Alternate Currency Agent
shall give written notice to the Administrative Agent by telex or telecopy of
the making of such Loan, which notice shall be substantially in the form
attached hereto as Exhibit G.
(iii) If for any reason any applicable Alternate Currency Bank fails to
make payment to the applicable Alternate Currency Agent of any amount due under
Section 2.5.1(ii) and the applicable Alternate Currency Addendum, the applicable
Alternate Currency Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Alternate
Currency Bank hereunder until the Alternate Currency Agent receives
32
such payment from such Alternate Currency Bank or such obligation is otherwise
fully satisfied. In addition to the foregoing, if for any reason any Alternate
Currency Bank fails to make payment to the applicable Alternate Currency Agent
of any amount due under Section 2.5.1(ii) and the applicable Alternate Currency
Addendum, such Alternate Currency Bank shall be deemed, at the option of the
applicable Alternate Currency Agent, to have unconditionally and irrevocably
purchased from the applicable Alternate Currency Agent, without recourse or
warranty, an undivided interest in and participation in the applicable Alternate
Currency Advance in the amount such Alternate Currency Bank was required to pay
pursuant to Section 2.5.1(ii) and the applicable Alternate Currency Addendum,
and such interest and such participation may be recovered from such Alternate
Currency Bank together with interest thereon at the Federal Funds Effective Rate
for each day during the period commencing on the date of demand by the
applicable Alternate Currency Agent and ending on the date such obligation is
fully satisfied.
2.5.2. Minimum Amount of Each Advance. Each Advance shall be in the
minimum amount of $5,000,000 and in integral multiples of $1,000,000 if in
excess thereof (or the Approximate Equivalent Amount if denominated in an Agreed
Currency other than Dollars or an Alternate Currency (or such other amounts as
may be specified in the applicable Alternate Currency Addendum)); provided,
however, that any Alternate Base Rate Advance may be in the amount of the
aggregate applicable unused Aggregate Commitment.
2.5.3. Prepayments. (A) Voluntary Prepayments. Subject to the terms of
Section 2.5.3, the Company may from time to time and at any time repay or prepay
all or any part of outstanding Alternate Base Rate Advances; provided, that the
Company may not so prepay Alternate Base Rate Advances unless it shall have
provided at least one Business Day's written notice to the Administrative Agent
of such prepayment. Eurocurrency Advances and Alternate Currency Advances may be
voluntarily repaid or prepaid prior to the last day of the applicable Interest
Period, subject to the indemnification provisions contained in Section 3.4 and
the provisions of Section 2.5.3, provided, that the applicable Borrower may not
so prepay Eurocurrency Advances unless it shall have provided at least three (3)
Business Days' written notice to the Administrative Agent of such prepayment.
Voluntary prepayments of the Loans shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount;
provided, that optional prepayments of Eurocurrency Advances made pursuant to
Section 2.1.1 shall be for the entire amount of the outstanding Eurocurrency
Advance and the minimum amounts set forth above shall not be applicable if the
aggregate outstanding principal balance of the Alternate Base Rate Loans is to
be prepaid in full.
(B) Mandatory Prepayments. (i) If at any time and for any reason, other
than the fluctuation in currency exchange rates (which shall be governed by the
provisions of clause (ii) below), the Dollar Amount of the Revolving Credit
Obligations, Alternate Currency Loans and Competitive Bid Loans are greater than
the Aggregate Commitment, the Company shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess.
(ii) If on the last Business Day of any month:
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(y) the Dollar Amount of the Revolving Credit Obligations plus the
Alternate Currency Loans plus the Competitive Bid Loans exceeds 105%
of the Aggregate Commitment, the Company for the ratable benefit of
the Lenders shall or shall cause the other Borrowers to immediately
prepay Loans (to be applied to such Loans as the Company shall
direct at the time of such payment) in an aggregate amount such that
after giving effect thereto the Dollar Amount of the Revolving
Credit Obligations plus the Alternate Currency Loans plus the
Competitive Bid Loans is less than or equal to the Aggregate
Commitment; or
(z) the Dollar Amount of all outstanding Alternate Currency Loans under
the Alternate Currency Addenda plus all Competitive Bid Loans in any
currencies other than Dollars exceeds 105% of the Maximum Alternate
Currency Amount, the applicable Borrowers shall on such date prepay
Alternate Currency Loans or Competitive Bid Loans in an aggregate
amount such that after giving effect thereto the Dollar Amount of
all such Alternate Currency Loans plus all Competitive Bid Loans in
any currencies other than ---- Dollars is less than or equal to the
Maximum Alternate Currency Amount.
(iii) Subject to the preceding provisions of this Section 2.5.3(B), all of
the mandatory prepayments made under this Section 2.5.3(B) shall be applied
first to Alternate Base Rate Loans, second to any Eurocurrency Loans and
Alternate Currency Loans maturing on such date, third to any Competitive Bid
Loans maturing on such date, and fourth to subsequently maturing Eurocurrency
Loans, Alternate Currency Loans and Competitive Bid Loans in order of maturity;
provided, that, if requested by the Company at a time when no Default has
occurred and is continuing, the Administrative Agent shall hold as cash
collateral the part of any such prepayment which, in accordance with this clause
(iii) is to be applied to outstanding Eurocurrency Loans, Alternate Currency
Loans and/or Competitive Bid Loans. The Administrative Agent shall apply such
cash collateral to outstanding Eurocurrency Loans, Alternate Currency Loans and
Competitive Bid Loans on the last day of the next expiring Interest Period with
respect to such Loans.
2.5.4. Interest Rates; Interest Periods. Each Alternate Base Rate Loan
shall bear interest on the outstanding principal amount thereof, for each day
from the date such loan is made until it becomes due at a rate per annum equal
to the Alternate Base Rate for such day. Each Eurocurrency Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Eurocurrency Rate
applicable thereto. Each Alternate Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum set forth in the applicable Alternate Currency
Addendum. Subject to the provisions of Section 2.5.5, each Advance (other than
those bearing interest by reference to the Alternate Base Rate, which shall be
governed by the first sentence of this Section) shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the earlier of (i) the last day of such Interest Period or (ii) the
date of any earlier prepayment in full as permitted by Section 2.5.3, at the
interest rate determined as applicable to such Advance.
34
2.5.5. Default Rate. After the occurrence and during the continuance of a
Default, upon notice to the Company at the option of the Administrative Agent or
at the direction of the Required Lenders (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates) the
interest rate applicable to all of the Obligations shall be the Alternate Base
Rate plus two percent (2%) per annum, provided that, during the continuance of a
Default under Section 7.6 or 7.7, the interest rate set forth above shall be
applicable to all Advances without any election or action on the part of the
Administrative Agent or any Lender.
2.5.6. Interest Payment Dates; Interest Basis. Interest accrued on each
Alternate Base Rate Advance shall be payable on each Payment Date and at
maturity. Interest accrued on each Eurocurrency Advance, or Alternate Currency
Advance shall be payable on the last day of its applicable Interest Period, on
any date on which such Eurocurrency Advance or Alternate Currency Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurocurrency Advance or Alternate Currency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest and utilization fees
on Alternate Base Rate Loans, Alternate Currency Loans denominated in Sterling
and Eurocurrency Loans denominated in Sterling and the facility fee shall be
calculated for actual days elapsed on the basis of a 365/366-day year. Interest
and utilization fees on all Alternate Currency Loans and Eurocurrency Loans, in
each case, other than those denominated in Sterling, shall be calculated for
actual days elapsed on the basis of a 360-day year (or a 365-day year if that is
deemed by the Administrative Agent to be consistent with market practices for
the applicable currency for any Agreed Currency added after the date hereof).
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.5.7. Method of Payment. Each Advance shall be repaid or prepaid in the
currency in which it was made in the amount borrowed and interest payable
thereon shall be paid in such currency. All payments of principal, interest, and
fees in Dollars hereunder shall be made by noon (Chicago time) on the date when
due in immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to Article XIV, or at any
other Lending Installation of the Administrative Agent specified in writing by
the Administrative Agent to the Company and shall be made ratably among all
Lenders in the case of fees and payments in respect of Advances. After the
occurrence and during the continuance of a Default, all payments of principal
shall be applied ratably among all outstanding Advances. Each payment delivered
to the Administrative Agent for the account of any Lender shall be delivered
promptly by the Administrative Agent to such Lender in the same type of funds
which the Administrative Agent received at its address specified pursuant to
Article XIV or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. All payments to be made by the Borrowers
hereunder or under the Notes issued hereunder in any currency other than Dollars
(other than in respect of any Alternate Currency Loan) shall be made
35
in such currency on the date due in such funds as may then be customary for the
settlement of international transactions in such currency for the account of the
Administrative Agent, at its Eurocurrency Payment Office for such currency. All
payments to be made by the Borrowers hereunder in respect of any Alternate
Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, freely transferable and cleared
at the office or branch from which the Loan was made under Section 2.1.2 not
later than 3:00 p.m. local time on the date on which such payment shall become
due (unless a different time shall be specified in the applicable Alternate
Currency Addendum). Promptly upon receipt of any payment of principal of the
Alternate Currency Loans, the Lender receiving such payment shall give written
notice to the Administrative Agent by telex or telecopy of the receipt of such
payment, which notice shall be substantially in the form attached hereto as
Exhibit H. The Administrative Agent will promptly cause such payments to be
distributed to each Lender in like funds and currency. Notwithstanding the
foregoing provisions of this Section, if, after the making of any Advance in any
currency other than Dollars, currency control or exchange regulations are
imposed in the country which issues such currency with the result that different
types of such currency (the "NEW CURRENCY") are introduced and the type of
currency in which the Advance was made (the "ORIGINAL CURRENCY") no longer
exists or the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in such Original Currency,
then all payments to be made by the applicable Borrower hereunder or under the
Notes issued hereunder in such currency shall be made in such amount and such
type of the New Currency or Dollars as shall be equivalent to the amount of such
payment otherwise due hereunder or under the Notes issued hereunder in the
Original Currency, it being the intention of the parties hereto that the
Borrowers take all risks of the imposition of any such currency control or
exchange regulations. In addition, notwithstanding the foregoing provisions of
this Section, if, after the making of any Advance in any currency other than
Dollars, the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in the type of currency in
which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead be repaid when
due in Dollars in a principal amount equal to the Dollar Amount (as of the date
of repayment) of such Advance; provided, that if and to the extent that any
legislative measures of the Council of the European Union for the introduction
of, changeover to or operation of a single or unified currency provided that
following the commencement of the third stage of the Economic and Monetary Union
an amount denominated either in the Euro or in the National Currency Unit of a
participating member state and payable within that participating member state by
crediting an account of the creditor can be paid by the debtor either in the
Euro or in that National Currency Unit and so long as the applicable National
Currency Unit in which the applicable Loan was made is an Eligible Currency,
each Borrower shall be entitled to pay or repay any such amount either in the
Euro or in such National Currency Unit.
2.5.8. Noteless Transaction; Evidence of Indebtedness. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Company and each Borrowing Subsidiary to such
Lender resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
36
(ii) The Administrative Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (c) the amount of any sum received by the Administrative
Agent hereunder from any Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
clauses (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of each Borrower to repay
its Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans to one or more of the Borrowers
be evidenced by a promissory note (a "NOTE"). In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a Note payable to the
order of such Lender in a form supplied by the Administrative Agent. Thereafter,
the Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 13.3) be represented by one
or more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 13.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in clauses (i) and (ii) above.
2.5.9. Notification of Advances, Interest Rates and Prepayments. Promptly
after receipt thereof, the Administrative Agent will notify each Lender of the
contents of each Aggregate Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Administrative Agent will notify each Lender of the interest rate applicable
to each Eurocurrency Advance and Alternate Currency Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.5.10. Non-Receipt of Funds by the Administrative Agent. Unless the
Company, a Borrowing Subsidiary or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (i) in the case of a Lender, the proceeds of a
Loan or (ii) in the case of the Company or a Borrowing Subsidiary, a payment of
principal, interest or fees to the Administrative Agent for the account of the
Lenders, that it does not intend to make such scheduled payment, the
Administrative Agent may assume that such scheduled payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
scheduled payment available to the intended recipient in reliance upon such
assumption. If such Lender, Borrowing Subsidiary or the Company, as the case may
be, has not in fact made such scheduled payment to the Administrative Agent, the
recipient of such scheduled payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Administrative Agent until the
date the Administrative Agent recovers such amount at a rate per annum equal to
(x) in the case of scheduled payment by
37
a Lender, the Federal Funds Effective Rate for such day or (y) in the case of
scheduled payment by the Company or a Borrowing Subsidiary, the interest rate
applicable to the relevant Loan.
2.5.11. Termination or Reduction in the Aggregate Commitment. The Company
may at any time after the date hereof permanently reduce the Aggregate
Commitment, in whole, or in a minimum aggregate amount of $5,000,000 and in
integral multiples of $1,000,000 if in excess thereof, ratably among the Lenders
upon at least three (3) Business Day's prior written notice to the
Administrative Agent, which notice shall specify the amount of such reduction;
provided, however, no such notice of reduction shall be effective to the extent
that it would reduce the Aggregate Commitment to an amount which would be less
than the outstanding principal Dollar Amount of the Obligations outstanding at
the time such reduction is to take effect. The Aggregate Commitment once reduced
as provided in this Section 2.5.11 may not be reinstated.
2.5.12. Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II with respect to any Advance in any currency
other than Dollars, if there shall occur on or prior to the date of such Advance
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent or the Required Lenders make it
impracticable for the Eurocurrency Loans, Alternate Currency Loans or
Competitive Bid Loans comprising such Advance to be denominated in the currency
specified by the applicable Borrower, then the Administrative Agent shall
forthwith give notice thereof to the Company and the Lenders, and such Loans
shall not be denominated in such currency but shall be made on such Borrowing
Date in Dollars, in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Borrowing Notice, as
Alternate Base Rate Loans, unless the applicable Borrower notifies the
Administrative Agent at least one Business Day before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date in a
different Agreed Currency or Alternate Currency, as the case may be, in which
the denomination of such Loans would in the opinion of the Administrative Agent
and the Required Lenders be practicable and in an aggregate principal amount
equal to the Dollar Amount of the aggregate principal amount specified in the
related Borrowing Notice.
2.5.13. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Administrative Agent and the Company in
accordance with Article XIV, designate replacement or additional Lending
Installations through which Loans will be made by it and for whose account Loan
payments are to be made.
2.5.14. Borrowing Subsidiaries. The Company may at any time or from time
to time, with the consent of the Administrative Agent, which consent shall not
be unreasonably withheld, add as a party to this Agreement any Australian,
Canadian, English, French or German Subsidiary to be a "Borrowing Subsidiary"
hereunder by (a) the execution and delivery to the Administrative Agent of a
duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company at the foot thereof and (b) the execution and delivery to the
38
Administrative Agent of such other documents, instruments or agreement as may be
reasonably required by the Administrative Agent; provided, however, if any
French Subsidiary is designated as a Borrowing Subsidiary, notwithstanding
anything else in this Agreement to the contrary, such Borrowing Subsidiary shall
be permitted to request only Competitive Bid Loans pursuant to Section 2.1.3 and
shall not be entitled to borrow any Alternate Currency Loans pursuant to Section
2.1.2. Upon such execution, delivery and consent such Subsidiary shall for all
purposes be a party hereto as a Borrowing Subsidiary as fully as if it had
executed and delivered this Agreement. So long as the principal of and interest
on any Advances made to any Borrowing Subsidiary under this Agreement shall have
been repaid or paid in full and all other obligations of such Borrowing
Subsidiary under this Agreement shall have been fully performed, the Company
may, upon not fewer than five (5) Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Lenders thereof),
terminate such Borrowing Subsidiary's status as a "Borrowing Subsidiary".
2.5.15. Withholding Tax Exemption. (i) On or prior to the date of its
execution and delivery of this Agreement in the case of any Lender (and on or
prior to the effective date specified in the Notice of Assignment pursuant to
which a Purchaser became a Lender in the case of each other Lender), each Lender
that is not incorporated under the laws of the United States of America, or a
state thereof, agrees that it will deliver to the Company and the Administrative
Agent two duly completed copies of United States Internal Revenue Service Form
1001 or 4224 (or other appropriate form), certifying in either case that such
Lender is entitled to receive payments from the Company under the Loan Documents
without deduction or withholding of any United States federal income taxes. Each
Lender which so delivers a Form 1001 or 4224 further undertakes to deliver to
the Company and the Administrative Agent two additional copies of such form (or
a successor form) on or before the date that such form (or a replacement of an
expired form) expires (currently, three successive calendar years for Form 1001
and one calendar year for Form 4224) or becomes obsolete or after the occurrence
of any event requiring a change in the most recent forms so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Administrative Agent, in each case certifying
that such Lender is entitled to receive payments from the Company under the Loan
Documents without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender promptly advises the Company and the
Administrative Agent that it is not capable of receiving payments from the
Company without any deduction or withholding of United States federal income
tax.
(ii) Each Lender agrees to file with the Administrative Agent and the
Borrowers, in duplicate, (a) on the date such Lender becomes an Alternate
Currency Bank with respect to an Alternate Currency and (b) thereafter as
frequently as required by applicable law unless not legally able to do so, on or
prior to the immediately following due date of any payment by the Borrowers
hereunder, a properly completed and executed copy of any form, certification or
similar documentation, if any, necessary for claiming complete exemption from
withholding taxes, or an opinion of counsel confirming such exemption; provided
that such Lender's failure
39
to complete, execute and file such form, certification or similar documentation
shall not relieve the Borrowers of any of their obligations under this
Agreement.
2.5.16. Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from a Borrower hereunder or
under any of the Notes issued hereunder in the currency expressed to be payable
herein or under the Notes issued hereunder (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's office in Chicago, Illinois on the Business Day preceding that on which
final, non-appealable judgment is given. The obligations of the applicable
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender or the Administrative Agent, as the
case may be, in the specified currency, the applicable Borrower agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the applicable Borrower.
2.5.17. Telephonic Notices. The Company and each Borrower hereby authorize
the Lenders and the Administrative Agent to extend or continue Advances, effect
selections of Types of Advances and transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or such Lender in good
faith believes to be a Financial Officer or an officer, employee or agent of the
Company or a Borrowing Subsidiary designated by a Financial Officer. The Company
agrees to deliver or to cause to deliver promptly to the Administrative Agent a
written confirmation of each telephonic notice given by the Company or any
Subsidiary, signed by a Financial Officer. If the written confirmation differs
in any material respect from the action taken by the Administrative Agent or the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.6 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement, until all
of the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied, all financing arrangements among the
Borrowers and the Lenders shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
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ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1. Taxes. (i) All payments by the Borrowers to or for the account of
any Lender or the Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If any Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.1) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the applicable Borrower shall make such deductions, (c) the applicable
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the applicable Borrower shall furnish to
the Administrative Agent the original copy of a receipt evidencing payment
thereof within 30 days after such payment is made.
(ii) In addition, the applicable Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("OTHER TAXES").
(iii) Each of the Borrowers hereby agrees to indemnify the Administrative
Agent and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 3.1) paid by the Administrative Agent or such Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. Payments due under this indemnification shall be made within 30
days of the date the Administrative Agent or such Lender makes demand therefor
pursuant to Section 3.7.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "NON-U.S. LENDER") agrees that it
will, not less than ten (10) Business Days after the date of this Agreement, (i)
deliver to each of the Company and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (ii) deliver to each of the Company and the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Company and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Company or the Administrative
Agent certifying that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, provided that no event (including without limitation any change in
treaty, law or regulation, or any change in the interpretation or administration
by any Governmental Authority) has occurred
41
prior to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to it. Each
Lender shall advise the Company and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, if it has actual knowledge of said fact.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Company with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.1 with respect to U.S. federal income taxes imposed by the United
States; provided that, should a Non-U.S. Lender which is otherwise exempt from
or subject to a reduced rate of withholding tax become subject to Taxes because
of its failure to deliver a form required under clause (iv), above, the Company
shall take such steps as such Non-U.S. Lender shall reasonably request to assist
such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty upon written
request from the Company shall deliver to the applicable Borrower (with a copy
to the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
and specified in the Company's written request as will permit such payments to
be made without withholding or at a reduced rate.
3.2. Yield Protection. (a) If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any
Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Loans, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurocurrency Advances or Alternate
Currency Advances), or
42
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Loans or reduces any amount receivable by
any Lender or any applicable Lending Installation in connection with
its Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the
amount of Loans held or interest received by it, by an amount deemed
material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Loans or Commitment
or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Loans or Commitment, then, within 15 days
of demand by such Lender, the Company shall pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received.
(b) Non-U.S. Reserve Costs With Respect to Loans to Non-U.S. Borrowers. If
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive of any jurisdiction outside of the United States of
America or any subdivision thereof (whether or not having the force of law),
imposes or deems applicable any reserve requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender or any applicable
Lending Installation, and the result of the foregoing is to increase the cost to
such Lender or applicable Lending Installation of making or maintaining its
Loans to any Borrower that is not incorporated under the laws of the United
States of America or a state thereof (each a "NON-U.S. BORROWER") or its
Commitment to any Non-U.S. Borrower or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Loans to any
Non-U.S. Borrower or Commitment to any Non-U.S. Borrower, then, within 15 days
of demand by such Lender, such Non-U.S. Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received, provided that such Non-U.S. Borrower shall
not be required to compensate any Lender for such non-U.S. reserve costs to the
extent that an amount equal to such reserve costs is received by such Lender as
a result of the direct inclusion of such reserve costs in the calculation of the
interest rate applicable to such Loans.
3.3.Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Company shall pay such Lender, as applicable, the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "CHANGE" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any
43
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.4. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurocurrency Loans, Alternate Currency Loans or Competitive
Bid Loans at a suitable Lending Installation would violate any applicable law,
rule, regulation, or directive, whether or not having the force of law, or if
the Required Lenders determine that (i) deposits of a type and maturity
appropriate to match fund Eurocurrency Advances are not available or (ii) the
interest rate applicable to a Type of Advance does not accurately reflect the
cost of making or maintaining such Advance, then the Administrative Agent shall
suspend the availability of the affected Type of Advance and require any
affected Advances to be repaid or converted to Alternate Base Rate Advances,
subject to the payment of any funding indemnification amounts required by
Section 3.5.
3.5. Funding Indemnification. If any payment of a Eurocurrency Advance,
Competitive Bid Advance or Alternate Currency Advance occurs on a date which is
not the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise or a Eurocurrency Advance, Alternate
Currency Advance or Competitive Bid Advance is not made on the date specified by
the applicable Borrower for any reason other than default by the Lenders, such
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Advances,
but excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Lender shall have delivered to the applicable
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
3.6. Mitigation of Additional Costs or Adverse Circumstances. If, in
respect of any Lender, circumstances arise which would or would upon the giving
of notice result in:
(a) an increase in the liability of a Borrower to such Lender under
Section 3.1, 3.2 or 3.3 or
(b) the unavailability of a Type of Loan under Section 3.4;
then, without in any way limiting, reducing or otherwise qualifying the
applicable Borrower's obligations under any of the clauses referred to above in
this Section 3.6, such Lender shall promptly upon becoming aware of the same
notify the Administrative Agent thereof and shall, in consultation with the
Administrative Agent and the Company and to the extent that it can do so in a
manner that is not, in the judgment of such Lender, disadvantageous to such
Lender, take such reasonable steps as may be reasonably available to it to
mitigate the effects of such
44
circumstances. If and so long as a Lender has been unable to take, or has not
taken, steps acceptable to the Company to mitigate the effect of the
circumstances in question, such Lender shall be obliged, at the request of the
Company, to assign all its rights and obligations hereunder to a financial
institution nominated by the Company with the approval of the Administrative
Agent and willing to participate in the facility in place of such Lender;
provided that such financial institution satisfies all of the requirements of
this Agreement including, but not limited to, providing the forms required by
Sections 2.5.15 and 13.3.2; and provided further that, with respect to such
assignment the Lender being replaced shall have concurrently received, in cash,
all amounts due and owing to such Lender hereunder or under any other Loan
Document, including, without limitation, the aggregate outstanding principal
amount of the Loans owed to such Lender, together with accrued interest thereon
through the date of such assignment, together with all accrued and unpaid fees
and other amounts payable to such Lender. Notwithstanding any such assignment,
the obligations of the Company under Sections 3.1, 3.2, 3.3 and 10.6 shall
survive any such assignment and be enforceable by such Lender.
3.7. Lender Statements; Survival of Indemnity. Each Lender shall deliver a
written statement of such Lender to the Company (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.3
or 3.5. Such written statement shall set forth in reasonable detail the event by
reason of which such Lender is entitled to make a claim for such amount and the
calculations upon which such Lender determined such amount, which shall be
final, conclusive and binding on the applicable Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurocurrency Loan, Alternate Currency Loan or Competitive Bid
Loan shall be calculated as though each Lender funded such Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the interest rate applicable to such Loan, whether
in fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement shall be payable within three (3) Business
Days of demand after receipt by the applicable Borrower of the written
statement. The obligations of such Borrower under Sections 3.1, 3.2, 3.3 and 3.5
shall survive payment of any other of such Borrower's Obligations and the
termination of this Agreement.
ARTICLE IV: CONDITIONS PRECEDENT
4.1. Initial Advance. No Lender shall be required to make the initial
Loans to the Company unless the Company has furnished or caused to be furnished
to the Administrative Agent with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation (or other
similar constituting documents) of the Company, together with all
amendments, and a certificate of good standing, each certified by
the appropriate governmental officer in its jurisdiction of
incorporation;
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Company, of the Company's by-laws (or other similar governing
agreements) and Board of
45
Directors' resolutions and of resolutions or actions of any other
body authorizing the execution of the Loan Documents;
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Company, which shall identify by name and title and
bear the signatures of the officers of the Company authorized to
sign the Loan Documents to which the Company is a party and to
request Advances, upon which certificate the Administrative Agent
and the Lenders shall be entitled to rely until informed of any
change in writing by the Company;
(iv) A certificate, signed by a Financial Officer of the Company, stating
that on the initial Borrowing Date no Default or Unmatured Default
has occurred and is continuing and that on the initial Borrowing
Date the representations and warranties contained in the Loan
Documents are true and correct;
(v) A written opinion of counsel to the Company, addressed to the
Lenders in substantially the form of Exhibit I;
(vi) The Notes, if any, requested by a Lender pursuant to Section 2.5.8
payable to the order of each such requesting Lender;
(vii) Written money transfer instructions, in substantially the form of
Exhibit J, addressed to the Administrative Agent and signed by a
Financial Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested;
(viii) The Company shall have provided evidence satisfactory to the
Administrative Agent of the cancellation and termination of its
Credit Agreement dated as of April 26, 1994, as amended and payment
of all accrued and unpaid amounts in connection therewith; and
(ix) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Initial Advance to Each Borrowing Subsidiary. No Lender shall be
required to make an Advance hereunder to a Borrowing Subsidiary unless the
Company has furnished or caused to be furnished to the Administrative Agent with
sufficient copies for the Lenders:
(i) The Assumption Letter executed and delivered by such Borrowing
Subsidiary and containing the written consent of the Company at the
foot thereof, as contemplated by Section 2.5.14;
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrowing Subsidiary, of its Board of Directors' resolutions (and/or
resolutions of other bodies, if any are deemed necessary by counsel
for any Lender) approving the Assumption Letter;
46
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrowing Subsidiary, which shall identify by name
and title and bear the signature of the officers of such Borrowing
Subsidiary authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Borrowing Subsidiary
hereunder, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the Company;
(iv) An opinion of counsel to such Borrowing Subsidiary in a form and
substance reasonably acceptable to the Administrative Agent;
(v) The Notes, if any, requested by a Lender from such Borrowing
Subsidiary pursuant to Section 2.5.8 payable to the order of each
such requesting Lender;
(vi) With respect to the initial Advance made to any Borrowing Subsidiary
incorporated in the United Kingdom or Australia, the Administrative
Agent shall have received originals and/or copies, as applicable, of
all filings required to be made certifying that each Lender, where
applicable is entitled to receive payments under the Loan Documents
without deduction or withholding of any English or Australian taxes;
(vii) Prior to the making of any Alternate Currency Loan to such Borrowing
Subsidiary, the applicable Alternate Currency Addendum executed by
the Administrative Agent, the Lenders and the Borrowing Subsidiary;
and
(viii) Such other documents as any Lender or its counsel may have
reasonably requested.
In addition, all legal details and proceedings in connection with the
transactions contemplated by this Agreement with respect to the relevant
Borrowing Subsidiary shall be satisfactory to the Lenders (in their reasonable
discretion), and the Administrative Agent shall have received all such
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Administrative Agent, as the Administrative Agent may
reasonably request. Notwithstanding anything in this Agreement to the contrary,
the initial Loans or Advances to any Borrowing Subsidiary incorporated or
domiciled under the laws of the United Kingdom or Australia shall not be made
prior to the date that is six months after the Effective Date.
4.3. Each Advance. The Lenders shall not be required to make any Advance
(including the initial Advance hereunder) unless on the applicable Borrowing
Date:
(i) Prior to and after giving effect to such Advance, there exists no
Default or Unmatured Default;
(ii) After giving effect to such Advance and to the application of the
proceeds thereof the representations and warranties contained in
this Agreement (except, in the
47
case of a Refunding Borrowing, the representations and warranties
set forth in Sections 5.5, 5.7 and the second sentence of Section
5.13 as to any matter which has theretofore been disclosed in
writing by the Company to the Lenders) are true and correct in all
material respects as of such Borrowing Date (except such
representations and warranties which expressly relate solely to, and
were true and correct in all material respects as of, an earlier
date); and
(iii) All legal and regulatory matters incident to the making of such
Advance shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.1, 4.2 and 4.3 have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form of Exhibit K as a
condition to making an Advance.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows to each Lender and the
Administrative Agent as of the date hereof and thereafter on each date as
required by Section 4.3:
5.1. Existence and Standing. Each of the Company and its Borrowing
Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or
limited liability company duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted except to the extent that the
failure to have such authority would not reasonably be expected to result in a
Material Adverse Effect.
5.2. Authorization and Validity. The Company and each of the Borrowing
Subsidiaries has the power and authority and legal right to execute and deliver
the Loan Documents and to perform its obligations thereunder. The execution and
delivery by the Company and each of the Borrowing Subsidiaries of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and the Loan Documents constitute
legal, valid and binding obligations of the Company and each of the Borrowing
Subsidiaries enforceable against them in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and general
equitable principles.
5.3. No Conflict; Government Consent. Neither the execution and delivery
by the Company and the Borrowing Subsidiaries of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate any law (including, without limitation, any law
of the United States of America, Australia, England, the United Kingdom, Canada,
Germany or the European Community), rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Company or any of the Borrowing
Subsidiaries or the Company's or any Borrowing Subsidiary's articles or
certificate of
48
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or the provisions of any indenture, instrument or
agreement to which the Company or any of the Borrowing Subsidiaries is a party
or is subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in or require the creation or
imposition of any Lien in, of or on the property of the Company or a Borrowing
Subsidiary pursuant to the terms of any such indenture, instrument or agreement,
in any such case which violation, conflict, default, creation or imposition
could reasonably be expected to have a Material Adverse Effect. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof which has not been
obtained, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
5.4. Financial Statements. The December 31, 1997 and June 30, 1998
financial statements of the Company and its Consolidated Subsidiaries heretofore
delivered to the Lenders were prepared in accordance with U.S. GAAP in effect on
the date such statements were prepared (subject, in the case of the June 30,
1998 financial statements to normal year-end adjustments) and fairly present the
financial condition of the Company and its Consolidated Subsidiaries at such
date and the results of their operations for the periods then ended.
5.5. Material Adverse Change. Since December 31, 1997 there has been no
change in the business, property, prospects, condition (financial or otherwise)
or results of operations of the Company and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Company and its Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed by any Governmental Authority and have paid all taxes due pursuant
to said returns or pursuant to any assessment received by the Company or any of
its Subsidiaries, except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided in accordance with
U.S. GAAP. The United States income tax returns of the Company and its
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1994. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of any taxes or other
governmental charges are, in the reasonable opinion of the Company, adequate.
The Borrowing Subsidiaries have filed all income tax returns and all other
material tax returns which are required to be filed by any Governmental
Authority and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by any of such Borrowing Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided.
5.7. Litigation. There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Company or any of its
Subsidiaries which could reasonably be expected to have a
49
Material Adverse Effect or which seeks to prevent, enjoin or delay the making or
repayment of any Loans.
5.8. ERISA. (a) The Company and each of its ERISA Affiliates has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. Neither the Company nor any
ERISA Affiliate has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(b) Each Foreign Employee Benefit Plan is in compliance in all material
respects with all laws, regulations and rules applicable thereto and the
respective requirements of the governing documents for such Plan, except for any
non-compliance the consequences of which, in the aggregate, would not result in
a Material Adverse Effect.
5.9. Accuracy of Information. No information, exhibit or report furnished
by the Company or any of its Subsidiaries to the Administrative Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact necessary to make the statements contained therein not misleading.
5.10. Environmental Matters. In the ordinary course of its business, the
officers of the Company consider the effect of Environmental Laws on the
business of the Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Company
and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has reasonably concluded that Environmental Laws are
not likely to have a Material Adverse Effect.
5.11. Investment Company Act. Neither the Company nor any Subsidiary is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended or otherwise restricted from borrowing under the provisions of the
Investment Company Act of 1940, as amended.
5.12. Public Utility Holding Company Act. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended or otherwise restricted from borrowing under the provisions of the
Public Utility Holding Company Act of 1935.
5.13 Year 2000 Issues. The Company has made an assessment of the Year 2000
Issues applicable to the Company and its Subsidiaries and has a reasonably
realistic program which the
50
Company reasonably believes can be implemented for remediating the material Year
2000 Issues on a timely basis. Based on this assessment and program, the Company
does not believe that Year 2000 Issues will have a Material Adverse Effect,
insofar as such Year 2000 issues are known to officers of the Company and within
the reasonable control of the Company and its Subsidiaries.
5.14. No Immunity. No Non-U.S. Borrower nor any of its assets is entitled
to immunity from suit, execution, attachment or other legal process. The
execution and delivery of the Loan Documents to which any Non-U.S. Borrower is a
party constitutes, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
5.15. Non-U.S. Borrower Representations. Each of the representations set
forth in Schedule 5.15 with respect to each Non-U.S. Borrower is true and
accurate in all material respects.
ARTICLE VI: COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Company will maintain, for itself and each
Consolidated Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Administrative Agent, for distribution to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an audit
report (with all amounts stated in Dollars) certified by Deloitte &
Touche LLP or any other independent certified public accountants
acceptable to the Required Lenders, prepared in accordance with U.S.
GAAP on a consolidated basis for itself and the Consolidated
Subsidiaries, including consolidated balance sheets and the related
consolidated statements of income, cash flows and statements of
changes in common shareholders' equity, setting forth in each case
in comparative form the figures for such fiscal year and the
previous fiscal year (it being understood that the requirement to
deliver such information may be satisfied by the delivery of the
Company's annual report on Form 10-K for such fiscal year so long as
such annual report continues to include such information).
(ii) Within 45 days after the close of the first three quarterly periods
of each of its fiscal years, for itself and the Consolidated
Subsidiaries, unaudited consolidated balance sheets as at the close
of each such period and the related consolidated income statement
and statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, setting forth in the
case of such statements of income and cash flows in comparative form
the figures for the
51
corresponding quarter and the corresponding portion of the Company's
previous fiscal year (it being understood that the requirement to
deliver such information may be satisfied by the delivery of the
Company's quarterly report on Form 10-Q for such fiscal quarter so
long as such quarterly report continues to include such
information), all certified (subject to normal year-end adjustments)
as to fairness of presentation, preparation in accordance with U.S.
GAAP and consistency by a Financial Officer of the Company.
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit K hereto
signed by its Financial Officer showing the calculations necessary
to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) Promptly upon the furnishing thereof to the shareholders of the
Company, copies of all financial statements, reports and proxy
statements so furnished.
(v) Promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly,
monthly or other regular reports which the Company or any of its
Subsidiaries files with the Securities and Exchange Commission.
(vi) As soon as possible and in any event within 10 days after the
Company knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by a Financial Officer of the Company,
describing said Reportable Event and the action which the Company
proposes to take with respect thereto.
(vii) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Company will, and will cause each Borrowing
Subsidiary to, use the proceeds of the Advances to provide funds for working
capital purposes (including to repay outstanding Advances) and other general
corporate purposes, including without limitation the possible purchase of
"margin stock" within the meaning of Regulation U; provided, none of the
proceeds of the Advances shall be used in any manner which would violate or
cause any Lender to be in violation of Regulations T, U or X of the Board of
Governors of the Federal Reserve System. None of the proceeds of the Advances
shall be used in connection with any Acquisition unless such Acquisition shall
have been disclosed by the Company to each of the Lenders promptly upon the
execution and delivery of any letter of intent or comparable agreement with
respect thereto.
6.3. Notice of Default. The Company will, and will cause each of its
Material Subsidiaries to, give prompt notice in writing to the Administrative
Agent of the occurrence of any Default or Unmatured Default and of any other
development, financial or otherwise, which could reasonably be expected to have
a Material Adverse Effect.
52
6.4. Corporate Existence; Conduct of Business. The Company will, and will
cause each Borrowing Subsidiary and each other Material Subsidiary to, do all
things necessary to remain duly organized, validly existing and in good standing
as a corporation in its jurisdiction of organization and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted except to the extent that the failure to maintain such authority would
not reasonably be expected to result in a Material Adverse Effect.
6.5. Taxes. The Company will, and will cause each of its Subsidiaries to,
timely file complete and correct (in all material respects) all material United
States federal, state and local and applicable foreign tax returns required by
laws and to pay when due all material taxes, assessments and governmental
charges and levies upon it or its income, profits or property, except those
which are being contested in good faith by appropriate proceedings, with respect
to which adequate reserves have been set aside.
6.6. Insurance. The Company will, and will cause its Subsidiaries to,
maintain (either in the name of the Company or in such Subsidiary's own name)
with reputable insurance companies insurance on their property against losses
greater than $5,000,000 in at least such amounts and covering such risks as is
consistent with sound business practice and the Company will furnish to any
Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. The Company will, and will cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, including, without limitation, laws relating to pension funds
and Environmental Laws, which, if violated, could reasonably be expected to have
a Material Adverse Effect.
6.8. Inspection. The Company will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective
representatives and agents and, absent the occurrence and continuance of a
Default at their expense, to inspect any of the properties, corporate books and
financial records of the Company and each Subsidiary, to examine and make copies
of the books of accounts and other financial records of the Company and each
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Lenders may designate.
6.9. Consolidations, Mergers and Sale of Assets. (a) Neither the Company
nor any Borrowing Subsidiary will consolidate or merge with or into any other
Person or sell, lease or otherwise transfer all or substantially all of its
assets to any other Person; provided that any Subsidiary may merge into the
Company or a Wholly-Owned Subsidiary.
(b) The Company will not permit any other Material Subsidiary to
consolidate or merge with or into any Person, or to sell, lease or otherwise
transfer all or substantially all of its assets to any Person unless the
surviving corporation or transferee, as the case may be, is the Company or a
Wholly-Owned Subsidiary.
53
6.10. Liens. The Company will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the property of the
Company or any Subsidiary, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with U.S. GAAP shall have been set aside on
its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other encumbrances
or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which
do not in any material way affect the marketability of the same or
interfere with the use thereof in the business of the Company or its
Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule 6.10 and
securing Debt outstanding on the date of this Agreement in an
aggregate principal or face amount which when aggregated with the
amount available for drawing under all letters of credit (and any
reimbursement obligations with respect thereto) secured pursuant to
clause (xiii) below does not exceed, at any time, $75,000,000.
(vi) Liens existing on any asset of any corporation at the time such
corporation becomes a Subsidiary of the Company and not created in
contemplation of such event; provided that such Liens shall not
apply to any property of the Company or its Subsidiaries other than
that covered as of such date and the proceeds of such property.
(vii) Liens on any asset securing Debt incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof.
(viii) Liens on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a
Subsidiary of the Company and not created in contemplation of such
event; provided that such Liens shall not apply to any property of
the Company or its Subsidiaries other than that covered on the date
of such merger or consolidation and the proceeds of such property.
54
(ix) Liens existing on any asset prior to the acquisition thereof by the
Company or a Subsidiary of the Company and not created in
contemplation of such acquisition; provided that such Liens shall
not apply to any property of the Borrower or its Subsidiaries other
than that acquired and the proceeds of such property.
(x) Liens arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased and is not secured by any additional assets.
(xi) Liens arising in the ordinary course of its business which (a) do
not secure Debt or Hedging Obligations, (b) do not secure any
obligation in an amount exceeding $75,000,000 and (c) do not in the
aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business.
(xii) Liens on cash and cash equivalents securing Hedging Obligations,
provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $5,000,000.
(xiii) Liens (including cash collateral) securing obligations (including
reimbursement obligations) in respect of letters of credit provided
(i) the amount available for drawing under all such letters of
credit (and any reimbursement obligations with respect thereto) (the
"SECURED L/C AMOUNT") does not exceed, at any time, $40,000,000 and
(ii) the sum of the Secured L/C Amount and the aggregate amount of
Debt secured pursuant to clause (v) above does not exceed, at any
time, $75,000,000.
(xiv) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at
any date not to exceed 10% of Consolidated Net Worth.
6.11 Subsidiary Debt. Other than pursuant to this Agreement, the Company
will not permit any of its Subsidiaries to incur or at any time be liable with
respect to any Funded Debt, or to issue or have outstanding any preferred stock,
except: (i) Funded Debt or preferred stock outstanding on the date hereof; (ii)
Funded Debt or preferred stock of a Subsidiary issued to and held by the Company
or a Wholly-Owned Subsidiary; (iii) Funded Debt or preferred stock of any
corporation existing at the time such corporation becomes a Subsidiary of the
Company and not created in contemplation of such event; (iv) refinancing,
extension, renewal or refunding of any Funded Debt permitted by the foregoing
clauses (i) through (iii); and (v) Funded Debt in addition to that set forth in
clauses (i) through (iv), if, after giving effect thereto, the aggregate
outstanding principal amount of Funded Debt of all Subsidiaries pursuant to this
clause (v) does not exceed $40,000,000 at any time.
6.12 Hedging Obligations. The Company shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap, leveraged derivative or similar agreements
other than interest rate, foreign currency or commodity exchange, swap,
55
collar, cap or similar agreements pursuant to which the Company or its
Subsidiaries xxxxxx its or its Subsidiaries' reasonably estimated interest rate,
foreign currency or commodity exposure.
6.13 Leverage Ratio. At any and all times, the Company shall not permit
the ratio of Consolidated Debt to Total Capitalization to exceed sixty-five
percent (65%).
6.14 Cash Flow Coverage Ratio. The Company shall not, as of the last day
of each fiscal quarter, permit Consolidated Cash Flow for the 12-month period
ending on such date to be less than 20% of Consolidated Debt as of such date;
provided, however, that if as a result of an Acquisition, Consolidated Debt
increases during any fiscal quarter by an amount of $10,000,000 or more (the
fact and amount of such increase being hereinafter referred to as the
"INCURRENCE" of "ACQUISITION DEBT"), then compliance with this Section shall be
determined as follows for the fiscal quarter in which the Acquisition Debt was
incurred and the three succeeding fiscal quarters:
(i) as of the end of the fiscal quarter during which the Acquisition
Debt was incurred, Consolidated Debt shall be reduced by the amount of the
Acquisition Debt and Consolidated Cash Flow shall be calculated exclusive
of the cash flow of the related acquisition ("ACQUISITION CASH FLOW"); and
(ii) as of the end of each of the three succeeding fiscal quarters,
compliance shall be based on the ratio of "Adjusted Consolidated Cash
Flow" (as defined below) for the twelve months then ended to Consolidated
Debt at such date.
For this purpose, "ADJUSTED CONSOLIDATED CASH FLOW" means Consolidated Cash
Flow, determined exclusive of Acquisition Cash Flow, plus the annualized
Acquisition Cash Flow for the period since the end of the fiscal quarter during
which the Acquisition Debt was incurred (i.e., as of the end of the first fiscal
quarter following the fiscal quarter during which the Acquisition Debt was
incurred, the Acquisition Cash Flow for such quarter multiplied by four; as of
the end of the second such fiscal quarter, the Acquisition Cash Flow for the six
months then ended multiplied by two; and as of the end of the third fiscal
quarter, the Acquisition Cash Flow for the nine months then ended multiplied by
one and one-third).
6.15 Year 2000 Issues. The Company shall, and shall cause each of its
Subsidiaries to continue to take reasonable actions in order to attempt to
implement, on a timely basis, the Year 2000 compliance programs it has adopted
from time to time. The Company shall provide the Administrative Agent and each
of the Lenders a copy of the Company's program to address Year 2000 Issues,
including (a) written reports prepared for its Board of Directors and (b) any
other updates and progress reports as reasonably requested. The Company shall
notify the Administrative Agent, in writing, if any Year 2000 Issues will have
or could reasonably be expected to have a Material Adverse Effect.
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ARTICLE VII: DEFAULTS
The occurrence and continuance of any one or more of the following events
shall constitute a Default:
7.1. Any material representation or warranty made or deemed made under
Article V by the Company or any Subsidiary to the Lenders or the Administrative
Agent under or in connection with this Agreement or any certificate or other
document delivered in connection with this Agreement or any other Loan Document
shall be materially false on the date as of which made or deemed made.
7.2. Nonpayment of principal of any Loans when due, or nonpayment of
interest upon any Loan within five (5) days after the same becomes due, or non
payment of any facility fee, utilization fee or other obligations under any of
the Loan Documents within ten (10) days after the same becomes due.
7.3. The breach by the Company of (a) any of the terms or provisions of
Sections 6.2, 6.9, 6.13 and 6.14 or (b) any of the terms or provisions of
Sections 6.10 and 6.11 and such failure shall continue for 15 days.
7.4. The breach by the Company (other than a breach which constitutes a
Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement which is not remedied within thirty days after written notice from the
Administrative Agent or any Lender.
7.5. Failure of the Company or any of its Subsidiaries to pay any Material
Financial Obligation when due; or the default by the Company or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement under which any Material Debt was created or is governed, or any
other event shall occur or condition exist, the effect of which is to cause, or
to permit the holder or holders of such Material Debt to cause such Material
Debt to become due prior to its stated maturity; or Material Debt of the Company
or any of its Subsidiaries shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment or as a result of the
sale of an asset securing such Material Debt) prior to the stated maturity
thereof.
7.6. Any Borrower or any Material Subsidiary shall (i) commence a
voluntary case under any bankruptcy, insolvency or other similar law as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
fail to pay, or admit in writing its inability to pay, its debts generally as
they become due, (iv) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its property, (v) institute any
proceeding seeking an order for relief under any bankruptcy, insolvency or other
similar law as now or hereafter in effect or seeking to adjudicate it a bankrupt
or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (vi) take any
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corporate action to authorize or effect any of the foregoing actions set forth
in this Section 7.6 or (vii) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Borrower or any
Material Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for any Borrower or any Material Subsidiary or any
Substantial Portion of the property of any such Person, or a proceeding
described in Section 7.6(iv) shall be instituted against any Borrower or any
Material Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the property of any Borrower or any Material Subsidiary
which, when taken together with all other property of any Borrower and the
Material Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Company or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge any judgment or order for the payment of money
in excess of $10,000, 000 (or the Equivalent Amount if denominated in a currency
other than Dollars), which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10. Any Reportable Event shall occur in connection with any Plan which
could reasonably be expected to have a Material Adverse Effect.
7.11. The obligations of the Company under Article IX hereof shall fail to
remain in full force or effect or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any of such obligations, or the
Company shall deny that it has any further liability under such Article IX, or
shall give notice to such effect.
7.12. Any Change in Control shall occur.
7.13 Any Termination Event occurs which could reasonably be expected to
subject either the Company or any ERISA Affiliate to liability individually or
in the aggregate in excess of $10,000,000.
ARTICLE VIII: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Company or any of its Material Subsidiaries, the obligations
of the Lenders to make Loans hereunder shall automatically terminate and the
Obligations of the Company and each Borrowing Subsidiary shall immediately
become due and payable without presentment, demand, protest or notice of any
kind (all of which the Company hereby expressly waives) or any other election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs and is continuing, the Required Lenders may terminate or suspend
the obligations of the Lenders to
58
make Loans (including, without limitation, Alternate Currency Loans), whereupon
the obligation of the Alternate Currency Banks to make Alternate Currency Loans
hereunder shall also terminate or be suspended or declare the Obligations of the
Company and each Borrowing Subsidiary to be due and payable, or both, in either
case upon written notice to the Company and the applicable Borrower, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or further notice of any kind, all of which each Borrower hereby
expressly waives.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Company may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Company hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Postpone or extend the Termination Date or any other date fixed
for the payment or prepayment of any Loans or other Obligations (except
with respect to any modifications of the provisions relating to
prepayments of Loans under Section 2.5.3(B)(ii) resulting from an increase
by the Required Lenders of the percentages set forth therein to not
greater than 115% or waiver of any prepayment which would have been
required except for such an increase in the applicable percentage).
(ii) Reduce the principal amount of any Loans, or reduce the rate or
extend the time of payment of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage or number of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definitions of "Required Lenders" or "Percentage".
(iv) Increase the amount of the Commitment of any Lender
hereunder or increase any Lender's Percentage.
(v) Permit any Borrower to assign its rights or obligations under
this Agreement or any other Loan Document.
(vi) Amend or modify Section 8.1, this Section 8.2 or Section 12.2.
(vii) Amend, modify or waive Article IX or release the Company from
its obligations thereunder.
No amendment of any provision of this Agreement relating in any way to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent. The Administrative Agent may waive payment of the fees
required under Section 2.4.3 or Section 13.3.2 without obtaining the consent of
any of the Lenders. Notwithstanding anything herein to the contrary, after the
Euro Implementation Date, or in immediate anticipation thereof, the
59
Administrative Agent (acting reasonably and after consultation with other
parties hereto) may by reasonable prior notice to the other parties hereto amend
this Agreement unilaterally for the exclusive purpose of effectuating changes
hereto which are necessary to the integration of the making of Loans hereunder
in Euro and only in a manner which shall not result in a deterioration of the
position of any Administrative Agent or Lender from its respective position
prior to the Euro Implementation Date.
The Administrative Agent may notify the other parties to this Agreement of
any amendments to this Agreement which the Administrative Agent reasonably
determines to be necessary as a result of the commencement of the third stage of
the European Economic and Monetary Union and the occurrence of the Euro
Implementation Date. Notwithstanding anything to the contrary contained herein,
any amendments so notified shall take effect in accordance with the terms of the
relevant notification, and, to the extent possible, such amendments shall be
implemented to put the parties in the same position as if the Euro
Implementation Date had not occurred; provided, however, that if and to the
extent that the Administrative Agent determines it is not possible to put all
parties into such position, the Administrative Agent may give priority to
putting the Administrative Agent, the Arranger and the Lenders into that
position.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Company or a Borrowing Subsidiary to satisfy the conditions
precedent to such Loan or such issuance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid
in full.
ARTICLE IX: GUARANTY
9.1. Guaranty. For valuable consideration, the receipt of which is hereby
acknowledged, and to induce the Lenders to make advances to each Borrowing
Subsidiary, the Company hereby absolutely and unconditionally guarantees prompt
payment when due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter, of any and all existing and future Obligations of
each Borrowing Subsidiary to the Administrative Agent, the Lenders and any
holder of a Note, or any of them, under or with respect to the Loan Documents,
whether for principal, interest, fees, expenses or otherwise (collectively, the
"GUARANTEED OBLIGATIONS").
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9.2. Waivers. The Company waives notice of the acceptance of this guaranty
and of the extension or continuation of the Guaranteed Obligations or any part
thereof. The Company further waives presentment, protest, notice of notices
delivered or demand made on any Borrowing Subsidiary or action or delinquency in
respect of the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to xxx the Borrowing
Subsidiary or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Obligations or any part thereof, and
provided further that if at any time any payment of any portion of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy or reorganization of any of the Borrowing
Subsidiaries or otherwise, the Company's obligations hereunder with respect to
such payment shall be reinstated at such time as though such payment had not
been made and whether or not the Administrative Agent or the Lenders are in
possession of this guaranty. The Administrative Agent and the Lenders shall have
no obligation to disclose or discuss with the Company their assessments of the
financial condition of the Borrowing Subsidiaries.
9.3. Guaranty Absolute. This guaranty is a guaranty of payment and not of
collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Borrowing Subsidiary or the
insolvency, bankruptcy or any other change in the legal status of any Borrowing
Subsidiary; (h) the change in or the imposition of any law, decree, regulation
or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed
Obligations; (i) the failure of the Company or any Borrowing Subsidiary to
maintain in full force, validity or effect or to obtain or renew when required
all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Obligations or this guaranty, or to take any
other action required in connection with the performance of all obligations
pursuant to the Guaranteed Obligations or this guaranty; (j) the existence of
any claim, setoff or other rights which the Company may have at any time against
any Borrowing
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Subsidiary, or any other Person in connection herewith or an unrelated
transaction; or (k) any other circumstances, whether or not similar to any of
the foregoing, which could constitute a defense to a guarantor; all whether or
not the Company shall have had notice or knowledge of any act or omission
referred to in the foregoing clauses (a) through (k) of this paragraph. It is
agreed that the Company's liability hereunder is several and independent of any
other guaranties or other obligations at any time in effect with respect to the
Guaranteed Obligations or any part thereof and that the Company's liability
hereunder may be enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guaranties or other obligations or any
provision of any applicable law or regulation purporting to prohibit payment by
any Borrowing Subsidiary of the Guaranteed Obligations in the manner agreed upon
between the Borrowing Subsidiary and the Administrative Agent and the Lenders.
9.4. Acceleration. The Company agrees that, as between the Company on the
one hand, and the Lenders and the Administrative Agent, on the other hand, the
obligations of each Borrowing Subsidiary guaranteed under this Article IX may be
declared to be forthwith due and payable, or may be deemed automatically to have
been accelerated, as provided in Section 8.1 hereof for purposes of this Article
IX, notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrowing Subsidiary or otherwise)
preventing such declaration as against such Borrowing Subsidiary and that, in
the event of such declaration or automatic acceleration, such obligations
(whether or not due and payable by such Borrowing Subsidiary) shall forthwith
become due and payable by the Company for purposes of this Article IX.
9.5. Marshaling; Reinstatement. None of the Lenders nor the Administrative
Agent nor any Person acting for or on behalf of the Lenders or the
Administrative Agent shall have any obligation to xxxxxxxx any assets in favor
of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company or any Borrower makes a payment or payments to any
Lender or the Administrative Agent, or any Lender or the Administrative Agent
receives any proceeds of collateral, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to such Borrower, the Company or any
other Person, or their respective estates, trustees, receivers or any other
party, including, without limitation, the Company, under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the extent of such
payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
9.6. Termination Date. This guaranty shall continue in effect until the
later of (i) the Termination Date and (ii) this Agreement has otherwise expired
or been terminated in accordance with its terms and all of the Guaranteed
Obligations have been paid in full in cash.
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ARTICLE X: GENERAL PROVISIONS
10.1. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Company or a Borrowing Subsidiary in violation of any limitation or prohibition
provided by any applicable statute or regulation.
10.2. Taxes. Any recording or documentary taxes or other similar
assessments or charges payable or ruled payable by any governmental authority in
respect of the Loan Documents shall be paid by the Company.
10.3. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent and the Lenders relating to the subject matter thereof
except as contemplated in Section 2.4.2.
10.5. Several Obligations. The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which the Administrative Agent is
authorized to act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. No Lender shall have any liability for the failure of any
other Lender to perform its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
10.6. Expenses; Indemnification. The Company and each Borrowing
Subsidiary, jointly and severally, shall reimburse (i) the Administrative Agent
and the Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and, in connection with the
preparation, execution and delivery of the Loan Documents, time charges of
attorneys for the Administrative Agent and/or the Arranger, which attorneys may
be employees of the Administrative Agent and/or the Arranger) including title
insurance premiums, lien search charges, recording taxes, filing charges and
other similar expenses paid or incurred by the Administrative Agent or the
Arranger in connection with the preparation, review, execution, delivery,
amendment, modification and administration of the Loan Documents, provided the
attorney's fees for the Administrative Agent's outside counsel in connection
with the preparation, execution and delivery of the Loan Documents shall not
exceed the amount set forth in the letter agreement dated October 19, 1998 and
(ii) the Administrative Agent, the Arranger and the Lenders for any costs,
internal charges and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Administrative Agent, the Arranger or the Lenders)
paid or incurred by the Administrative Agent, the Arranger or any Lender in
connection with the collection and enforcement of the Loan Documents (except to
the extent that a court of
63
competent jurisdiction rules against the Administrative Agent, the Arranger or
the Lenders in a final non-appealable judgment in any such collection or
enforcement action), any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or any insolvency or
bankruptcy proceedings in respect of the Company or any Borrowing Subsidiary.
The Company and each Borrowing Subsidiary, jointly and severally, further agree
to indemnify the Administrative Agent, the Arranger and each Lender, their
respective directors, officers and employees (the "Indemnitees") against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Administrative Agent, the Arranger or any Lender is
a party thereto) (collectively, the "Indemnified Amounts") which any of them may
pay or incur arising out of or relating to the direct or indirect application or
proposed application of the proceeds of any Loan hereunder; provided, however,
that neither the Company nor any Borrowing Subsidiary shall be liable to any
Indemnitee for any Indemnified Amounts to the extent that a court of competent
jurisdiction has determined in a final non-appealable judgment that the
foregoing resulted from such Indemnitee's Gross Negligence or willful
misconduct. The Company and each Borrowing Subsidiary further agree (y) to
assert no claims for consequential, special, indirect or punitive damages on any
theory of liability in connection in any way with the Loan Documents or the
transactions evidenced thereby and (z) not to settle any claim, litigation or
proceeding relating to the Loan Documents or the transactions evidenced thereby
unless such settlement releases all Indemnitees from any and all liability in
respect of such transaction or unless each Indemnitee approves such settlement.
The obligations of the Company and each Borrowing Subsidiary under this Section
10.6 shall survive the termination of this Agreement.
10.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.8. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.9. Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrowers to review or inform the
Borrowers of any matter in connection with any phase of the Borrowers' business
or operations.
10.10. CHOICE OF LAW. THIS AGREEMENT AND, UNLESS OTHERWISE SET FORTH
THEREIN, THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD
TO THE LAW OF CONFLICTS) OF THE STATE
64
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.11 CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO AGREES THAT ALL
DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, MAY BE RESOLVED BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO,
ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. TO THE
EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO SUBMITS TO THE NON-EXCLUSIVE
PERSONAL JURISDICTION OF SUCH COURTS AND WAIVES IN ANY SUITS OR OTHER
PROCEEDINGS BROUGHT PURSUANT TO THIS SECTION ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
10.12. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Company or any Subsidiary pursuant to
this Agreement in confidence, except for disclosure (i) to other Lenders and
their respective affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender who need to know such information in
connection with the transactions contemplated hereby, (iii) to regulatory
officials, (iv) as requested pursuant to or as required by law, regulation, or
legal process, (v) in connection with any legal proceeding to which that Lender
is a party, and (vi) permitted by Section 13.4. The restrictions in this Section
10.12 shall not apply to any information which is or becomes generally available
to the public other than as a result of disclosure by a Lender or a Lender's
representatives.
10.13. English Language. All certificates, instruments and other documents
to be delivered under or supplied in connection with this Agreement shall be in
the English language or shall attach a certified English translation thereof,
which translation shall be the governing version.
10.14 Alternate Currency Addenda Binding on Each Lender; Provisions
Regarding Alternate Currency Agents. Each of the Lenders agrees that it shall be
bound by the provisions of each Alternate Currency Addendum entered into in
connection herewith, in particular as it relates to the provisions applicable to
the Alternate Currency Agent appointed thereunder.
10.15 Collateral. Each of the Lenders represents to the Administrative
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
65
ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1. Appointment. The First National Bank of Chicago is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender. The Administrative Agent agrees to
act as such upon the express conditions contained in this Article XI. The
Administrative Agent shall not have a fiduciary relationship in respect of the
Company, any Borrowing Subsidiary, any Lender by reason of this Agreement or the
Loan Documents. Notwithstanding the use of the defined term "Administrative
Agent," it is expressly understood and agreed that the Administrative Agent
shall not have any fiduciary responsibilities to any Lender by reason of this
Agreement and that the Administrative Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Administrative Agent (i) does not assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender waives.
11.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
11.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company or to
any Borrowing Subsidiary or Lender for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document except to the extent such action or inaction is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the Gross Negligence or willful misconduct of such Person or an Affiliate
thereof.
11.4. No Responsibility for Loans, Collateral, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder, including statements made in any offering
memorandum or "Bank Book"; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article IV, except receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith, except for the authority of the
Administrative Agent's signatory to this Agreement. The Administrative Agent
shall not be
66
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents, for the perfection or
priority of any of the Liens on any collateral, if any, or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of the Company
or any of its Subsidiaries.
11.5. Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders or all the Lenders, as applicable, and such instructions
and any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders and on all holders of Notes. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action, provided
that, such indemnity need not include liability, costs and expenses which a
court of competent jurisdiction has determined in a final non-appealable
judgment arose from the Gross Negligence or willful misconduct of the
Administrative Agent.
11.6. Employment of Administrative Agents and Counsel. The Administrative
Agent may execute any of its duties as Administrative Agent hereunder and under
any other Loan Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
11.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Percentages (i) for any amounts not reimbursed by
the Company or any Borrowing Subsidiary for which the Administrative Agent is
entitled to reimbursement by the Company or any Borrowing Subsidiary under the
Loan Documents, (ii) for any other expenses not reimbursed by the Company or any
Borrowing Subsidiary incurred by the Administrative Agent on behalf of the
Lenders in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents (including reasonable attorneys' and
paralegals' fees) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever and not reimbursed by the Company or any Borrowing
Subsidiary which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or
67
any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the Gross
Negligence or willful misconduct of the Administrative Agent.
11.9. Rights as a Lender. With respect to its Commitment, Loans made by it
and the Notes issued hereunder issued to it held by it, the Administrative Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders"shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries.
11.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the
Documentation Agent, the Syndication Agent or any other Lender and based on the
financial statements prepared by the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent, Documentation Agent, Syndication Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
11.11. Successor Administrative Agent. The Administrative Agent may resign
at any time by giving at least 30 days' prior written notice thereof to the
Lenders and the Company and such resignation shall be effective at the end of
such 30-day period or upon the earlier appointment of a successor agent, and the
Administrative Agent may be removed at any time with or without cause by written
notice received by the Administrative Agent from the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's removal or giving notice of resignation, then
the retiring Administrative Agent may appoint, on behalf of the Lenders, a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
The retiring Administrative Agent shall be discharged from any further duties
and obligations hereunder and under the other Loan Documents upon the
effectiveness of its removal or resignation hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
68
11.12. No Duties Imposed Upon Syndication Agent, Documentation Agent or
Co-Agents. None of the Lenders identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreement as
"Syndication Agent," "Documentation Agent" or "Co-Agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent," "Documentation Agent" or "Co-Agent" shall have or be deemed
to have any fiduciary duty to or fiduciary relationship with any Lender. In
addition to the agreements set forth in Section 11.10, each of the Lenders
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any Default occurs, any Debt from any Lender to such Borrower and
any and all account balances, whether provisional or final and whether or not
collected or available, may be offset and applied toward the payment of the
Obligations owing to such Lender whether or not the Obligations, or any part
thereof, shall then be due.
12.2. Ratable Payments. If, after the occurrence of a Default, any Lender,
whether by setoff or otherwise, has payment made to it upon its share of any
Advance (other than payments received which are for the account of the
Administrative Agent or pursuant to Article III) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans comprising that Advance held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of Loans comprising that Advance. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
12.3 Application of Payments. The Administrative Agent shall, unless
otherwise specified at the direction of the Required Lenders which direction
shall be consistent with the last sentence of this Section 12.3, apply all
payments and prepayments in respect of any Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of
the Loans which the Administrative Agent may have advanced on behalf of
any Lender for which the Administrative Agent has not then been reimbursed
by such Lender or the Company;
69
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans; and
(E) fifth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans shall be applied first, to the outstanding Revolving Loans, and second,
to the outstanding Alternate Currency Loans, and third to the outstanding
Competitive Bid Loans, in each case, first, to repay outstanding Alternate Base
Rate Loans, and then to repay outstanding Eurocurrency Loans (or other fixed
rate Loans) with those Loans which have earlier expiring Interest Periods being
repaid prior to those which have later expiring Interest Periods. The order of
priority set forth in this Section 12.3 and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the
Administrative Agent and the Lenders as among themselves. The order of priority
set forth in clauses (D) and (E) of this Section 12.3 may at any time and from
time to time be changed by the Required Lenders without necessity of notice to
or consent of or approval by the any Borrower, or any other Person. The order of
priority set forth in clauses (A) through (C) of this Section 12.3 may be
changed only with the prior written consent of the Administrative Agent.
ARTICLE XIII: BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS
13.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers, the
Lenders and their respective successors and assigns, except that (i) no Borrower
shall have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by any Lender must be made in compliance with
Section 13.3. Notwithstanding clause (ii) of this Section, any Lender may at any
time, without the consent of any Borrower or the Administrative Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until such payee complies with Section 13.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Administrative Agent. Any assignee or transferee of a Note or
any other interest in the Obligations agrees by acceptance thereof to be bound
by all the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
13.2. Participations.
70
13.2.1. Permitted Participants; Effect. Any Lender may in accordance with
applicable law, without the consent of any Borrower or the Administrative Agent,
at any time sell to one or more financial institutions ("PARTICIPANTS")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, the Commitment of such Lender, or any other interest of such Lender
under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrowers under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrowers and the Administrative Agent and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
13.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan or Commitment, postpones any date
fixed for any regularly-scheduled payment (but not prepayments) of principal of,
or interest or fees on, any such Loan or Commitment, releases any guarantor of
any such Loan (other than as contemplated hereunder or under any other Loan
Document), if any, or releases all or substantially all of the collateral, if
any, securing any such Loan.
13.2.3. Benefit of Setoff. The Borrowers agree that each Participant shall
be deemed to have the right of setoff provided in Section 12.1 in respect of its
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 12.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
13.3. Assignments.
13.3.1. Permitted Assignments. Any Lender may, in accordance with
applicable law, at any time assign to one or more financial institutions
("PURCHASERS") all or a portion of its rights and obligations under the Loan
Documents, which assignment shall (unless (i) such assignment is to another
Lender or an Affiliate thereof or (ii) the Administrative Agent and, if no
Default has occurred and is continuing, the Company otherwise consents) be in
amounts equal to or greater than $10,000,000 (or the Equivalent Amount thereof
if denominated in an Alternate Currency or an Agreed Currency other than
Dollars) or, if less, all of such assigning Lender's remaining Loans and
Commitments hereunder. Such assignment shall be substantially in the form of
Exhibit C hereto. The consent of the Administrative Agent and, if no Default has
occurred and is
71
continuing, the Company (which consent, in each case, shall not be unreasonably
withheld or delayed) shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate thereof.
13.3.2. Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as Exhibit I
to Exhibit C hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by Section 13.3.1 (provided however, that no consent shall be required
for an assignment from a Lender to an Affiliate of the Lender), and (ii) payment
of a $3,500 fee to the Administrative Agent by the assigning Lender for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by any Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Administrative Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
13.4. Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
10.12 of this Agreement.
13.5. Tax Treatment. If any interest in any Loan Document is transferred
to any Purchaser which is organized under the laws of any jurisdiction other
than the United States of America or any State thereof, the transferor Lender
shall cause such Purchaser, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.5.15(a).
ARTICLE XIV: NOTICES
14.1. Giving Notice. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by telex or by facsimile and addressed or delivered to such party at its
address set forth below its signature hereto or at such other address as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid, shall be deemed given when
72
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2. Change of Address. The Company, each Borrowing Subsidiary, the
Administrative Agent and each Lender may change the address for service of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Company, the Administrative Agent and
the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
ARTICLE XVI: WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
73
IN WITNESS WHEREOF, the Company, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
CRANE CO.
By:
----------------------------------------
Title: Vice President Finance and
Chief Financial Officer
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. xxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
74
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent and as a Lender
By:
----------------------------------------
Title:
-------------------------------------------
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00
XXX XXXX XX XXX XXXX, as Syndication Agent
and as a Lender
By:
----------------------------------------
Title: Vice President
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
76
FLEET NATIONAL BANK, as Documentation Agent
and as a Lender
By:
----------------------------------------
Title:
-------------------------------------------
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
77
ABN AMRO BANK N.V., as a Lender
By:
----------------------------------------
Title:
-------------------------------------------
By:
----------------------------------------
Title:
-------------------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
78
FIRST UNION NATIONAL BANK, as a Co-Agent and
as a Lender
By:
----------------------------------------
Title: Executive Vice President
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00
XXX XXXXX XXXXXXXXX BANK, as a Co-Agent and
as a Lender
By:
----------------------------------------
Title: Vice President
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Aria
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
80
BANQUE NATIONALE DE PARIS, as a Lender
By:
----------------------------------------
Title:
-------------------------------------------
By:
----------------------------------------
Title:
-------------------------------------------
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
81
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as a Lender
By:
----------------------------------------
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: SoVonna Day
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
82
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:
----------------------------------------
Title:
-------------------------------------------
000 Xxxxxx Xxxxxx
0xx xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
83
