EXHIBIT 10.1
EXECUTION COPY
AMENDED AND RESTATED FIVE YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
Dated as of September 3, 2002
among
AVAYA INC.,
as Borrower,
THE LENDERS PARTY HERETO,
CITIBANK, N.A.,
as Agent
XXXXXXX XXXXX XXXXXX INC.,
as Lead Arranger,
BANK ONE, NA, JPMORGAN CHASE BANK and DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Syndication Agents and Co-Arrangers
and
COMMERZBANK AG
as Co-Arranger
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
SECTION 1.01. DEFINED TERMS............................................................3
SECTION 1.02. TERMS GENERALLY.........................................................16
ARTICLE II THE CREDITS
SECTION 2.01. COMMITMENTS.............................................................16
SECTION 2.02. LOANS...................................................................16
SECTION 2.03. COMPETITIVE BID PROCEDURE...............................................18
SECTION 2.04. COMMITTED BORROWING PROCEDURE...........................................20
SECTION 2.05. CONVERSION AND CONTINUATION OF COMMITTED LOANS..........................20
SECTION 2.06. FEES ...................................................................21
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT....................................22
SECTION 2.08. INTEREST ON LOANS.......................................................22
SECTION 2.09. DEFAULT INTEREST........................................................24
SECTION 2.10. ALTERNATE RATE OF INTEREST..............................................24
SECTION 2.11. TERMINATION AND REDUCTION OF COMMITMENTS................................24
SECTION 2.12. PREPAYMENT..............................................................26
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES...........................26
SECTION 2.14. CHANGE IN LEGALITY......................................................28
SECTION 2.15. INDEMNITY...............................................................28
SECTION 2.16. PRO RATA TREATMENT......................................................29
SECTION 2.17. SHARING OF SETOFFS......................................................30
SECTION 2.18. PAYMENTS................................................................30
SECTION 2.19. TAXES...................................................................30
SECTION 2.20. MANDATORY ASSIGNMENT; COMMITMENT TERMINATION............................33
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01. ORGANIZATION; POWERS....................................................33
SECTION 3.02. AUTHORIZATION...........................................................33
SECTION 3.03. ENFORCEABILITY..........................................................34
SECTION 3.04. GOVERNMENTAL APPROVALS..................................................34
SECTION 3.05. FINANCIAL STATEMENTS....................................................34
SECTION 3.06. LITIGATION; COMPLIANCE WITH LAWS........................................34
SECTION 3.07. FEDERAL RESERVE REGULATIONS.............................................35
SECTION 3.08. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT..............35
SECTION 3.09. USE OF PROCEEDS.........................................................35
SECTION 3.10. NO MATERIAL MISSTATEMENTS...............................................35
ARTICLE IV CONDITIONS OF LENDING
SECTION 4.01. ALL BORROWINGS..........................................................35
SECTION 4.02. CLOSING DATE............................................................36
ARTICLE V COVENANTS
SECTION 5.01. EXISTENCE...............................................................37
SECTION 5.02. FINANCIAL STATEMENTS, REPORTS, ETC......................................37
SECTION 5.03. MAINTAINING RECORDS.....................................................38
SECTION 5.04. USE OF PROCEEDS.........................................................38
SECTION 5.05. COMPLIANCE WITH LAWS, ETC...............................................38
SECTION 5.06. CONSOLIDATIONS, MERGERS, AND SALES OF ASSETS............................38
SECTION 5.07. LIMITATIONS ON LIENS....................................................38
SECTION 5.08. INTEREST COVERAGE RATIO.................................................40
ARTICLE VI EVENTS OF DEFAULT
ARTICLE VII THE AGENT
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. NOTICES.................................................................52
SECTION 8.02. SURVIVAL OF AGREEMENT...................................................52
SECTION 8.03. BINDING EFFECT..........................................................52
SECTION 8.04. SUCCESSORS AND ASSIGNS..................................................53
SECTION 8.05. EXPENSES; INDEMNITY.....................................................55
SECTION 8.06. RIGHT OF SETOFF.........................................................56
SECTION 8.07. APPLICABLE LAW..........................................................56
SECTION 8.08. WAIVERS; AMENDMENT......................................................56
SECTION 8.09. ENTIRE AGREEMENT........................................................57
SECTION 8.10. SEVERABILITY............................................................57
SECTION 8.11. COUNTERPARTS............................................................57
SECTION 8.12. HEADINGS................................................................58
SCHEDULE I Applicable Lending Offices
SCHEDULE 2.01 Allocations
SCHEDULE 2.11 Approved Asset Sales
EXHIBIT A-1 Form of Competitive Bid Request
EXHIBIT A-1 Form of Notice of Competitive Bid Request
EXHIBIT A-3 Form of Competitive Bid
EXHIBIT A-4 Form of Competitive Accept/Reject Letter
EXHIBIT A-5 Form of Competitive Bid Note
EXHIBIT A-6 Form of Committed Borrowing Request
EXHIBIT B Form of Standby Note
EXHIBIT C Assignment and Acceptance
EXHIBIT D-2 Form of Opinion of Counsel to the Borrower
2
AMENDED AND RESTATED FIVE YEAR
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT dated as of September 3, 2002, among
AVAYA INC., a
Delaware corporation (the "Borrower"), the lenders listed in Schedule 2.01 (the
"Lenders"), CITIBANK, N.A., as agent for the Lenders (in such capacity, the
"Agent"), XXXXXXX XXXXX XXXXXX INC., as Lead Arranger, BANK ONE, NA, JPMORGAN
CHASE BANK and DEUTSCHE BANK AG
NEW YORK BRANCH, as Co-Syndication Agents and
Co-Arrangers, and COMMERZBANK AG, as Co-Arranger.
The Borrower is party to a Five Year
Competitive Advance And Revolving
Credit Facility Agreement dated as of September 25, 2000, as amended by Letter
Amendment dated as of August 10, 2001 and by Amendment No. 2 dated as of
February 8, 2002 (as so amended, the "Existing Credit Agreement") with the
lenders and agents parties thereto and the Agent.
The Borrower has requested, and the Required Lenders have agreed,
subject to the satisfaction of the conditions set forth in Section 4.01, to
amend and restate the Existing Credit Agreement on the terms and subject to the
conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Committed Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire containing contact information for each Lender in form
satisfactory to the Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or is
under common control with the person specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Base Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof,
"Base Rate" shall mean the rate of interest per annum publicly announced from
time to time by the Agent as its base rate in effect at its principal office in
New York City; each change in the Base Rate shall be effective on the date
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such change is publicly announced as effective. For purposes hereof, "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of
New York, or, if such rate is not so published for any day which
is a Business Day, the arithmetic average, as determined by the Agent, of the
quotations for the day of such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it. If for any reason
the Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Base Rate or
the Federal Funds Effective Rate shall be effective on the effective date of
such change in the Base Rate or the Federal Funds Effective Rate, respectively.
"Amendment No. 2 Effective Date" means February 8, 2002.
"Applicable Margin" shall mean, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set
forth below:
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APPLICABLE MARGIN FOR
PUBLIC DEBT RATING EURODOLLAR APPLICABLE MARGIN FOR
S&P/XXXXX'X COMMITTED LOANS ABR LOANS
-----------------------------------------------------------------------------------
I: At least BBB- or
Baa3 1.250% 0.000%
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II: Below I, but at least
BB+ and Ba1 1.625% 0.125%
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III: Below II, but at least
BB and Ba2 2.000% 0.500%
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IV: Below III, but at least
BB- and Ba3 2.500% 1.000%
-----------------------------------------------------------------------------------
V: Below IV 3.000% 1.500%
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"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set
forth below:
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PUBLIC DEBT RATING APPLICABLE
S&P/XXXXX'X PERCENTAGE
--------------------------------------------------------
I: At least BBB- or 0.250%
Baa3
--------------------------------------------------------
II: Below I, but at least 0.375%
BB+ and Ba1
--------------------------------------------------------
III: Below II, but at least 0.500%
--------------------------------------------------------
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--------------------------------------------------------
BB and Ba2
--------------------------------------------------------
IV: Below III, but at least 0.500%
BB- and Ba3
--------------------------------------------------------
V: Below IV 0.500%
--------------------------------------------------------
"Applicable Utilization Fee" means, as of any date that the aggregate
Loans exceed 50% of the aggregate Commitments, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
----------------------------------------------------------------------------
APPLICABLE
UTILIZATION FEE
FOR EURODOLLAR APPLICABLE
PUBLIC DEBT RATING COMMITTED UTILIZATION FEE
S&P/XXXXX'X LOANS FOR ABR LOANS
----------------------------------------------------------------------------
I: At least BBB- or 0.250% 0.000%
Baa3
----------------------------------------------------------------------------
II: Below I, but at least 0.250% 0.250%
BB+ and Ba1
----------------------------------------------------------------------------
III: Below II, but at least 0.250% 0.250%
BB and Ba2
----------------------------------------------------------------------------
IV: Below III, but at least 0.500% 0.500%
BB- and Ba3
----------------------------------------------------------------------------
V: Below IV 0.500% 0.500%
----------------------------------------------------------------------------
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Agent, in the form
of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Board of Directors" shall mean the Board of Directors of the
Borrower, or any duly authorized committee thereof.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of
New York) on which banks are
open for business in
New York City; PROVIDED, HOWEVER, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
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"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Documents" means the Security Agreement, the Collateral
Trust Agreement, and any other agreement that creates or purports to create a
Lien in favor of the Collateral Trustee for the benefit of the Secured Parties.
"Collateral Trigger" means the date on which (a) the Borrower's
corporate credit rating shall be lower than BBB- by S&P or (b) the Borrower's
Public Debt Rating shall be lower than Baa3 by Xxxxx'x.
"Collateral Trust Agreement" means the Collateral Trust Agreement
dated as of March 25, 2002 among the Borrower, the other grantors named therein
and The Bank of
New York, as collateral trustee.
"Collateral Trustee" has the meaning specified in the Collateral Trust
Agreement.
"Commitment" shall mean, with respect to each Lender, the Commitment
of such Lender as set forth in Schedule 2.01 hereto.
"Committed Borrowing" shall mean a Borrowing consisting of
simultaneous Committed Loans from each of the Lenders.
"Committed Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-6.
"Committed Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to Section 2.04. Each Committed Loan shall be a
Eurodollar Committed Loan or an ABR Loan.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
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"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the Borrower
under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated EBITDA" shall mean, for any period, net income (or net
loss) PLUS the sum of (a) consolidated interest expense, (b) consolidated income
tax expense, (c) consolidated depreciation expense, (d) consolidated
amortization expense (including the write down of intangibles associated with
the adoption or implementation of FAS 142) and (e) all other non-cash charges
except to the extent any such non-cash charge represents an accrual or reserve
for cash expenditures in a future period, in each case, determined in accordance
with GAAP for such period, EXCLUDING, (i) up to $950,000,000 of charges in
connection with the business restructuring plan during such period to be taken
no later than the fourth quarter of fiscal year 2001 of the Borrower, (ii) up to
$300,000,000 of start-up costs associated with the establishment of the Borrower
as a separate business entity incurred during the period to be taken through the
fourth quarter of fiscal year 2001 of the Borrower, (iii) up to $450,000,000 of
non-cash business restructuring charges during such period to be taken no later
than the fourth quarter of fiscal year 2001 of the Borrower, (iv) up to
$163,000,000 of restructuring charges, including asset impairment and other one
time charges during such period to be taken no later than the fourth quarter of
fiscal year 2002 of the Borrower, (v) non-cash in process research and
development charges associated with Investments made in accordance with Section
5.19(xi) and (vi) up to $100,000,000 of restructuring charges to be taken no
later than the third quarter of fiscal year 2003 of the Borrower.
"Consolidated Net Worth" shall mean, at any date, the consolidated
total assets appearing on the most recently prepared consolidated balance sheet
of the Borrower and its consolidated subsidiaries as of the end of the most
recent fiscal quarter for which such balance sheet is available, prepared in
accordance with GAAP, less all consolidated total liabilities as shown on such
balance sheet.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
installment sale or other deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person as lessee under
7
Capitalized Leases and under synthetic, off-balance sheet or tax retention
leases, (e) all obligations, contingent or otherwise, of such Person in respect
of acceptances, standby letters of credit or similar extensions of credit, (f)
all net payment obligations of such Person in respect of Hedge Agreements, (g)
all Debt of others referred to in clauses (a) through (f) above or clause (h)
below guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an agreement (1)
to pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt or (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
providing direct or indirect security for such Debt or to assure the holder of
such Debt against loss, and (h) all Debt referred to in clauses (a) through (g)
above secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) has failed to fund any portion of any Loan required to be made by such
Lender to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
or (b) shall take any action or be the subject of any action or proceeding of a
type described in Section 6.01(g) or (h).
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Law" shall mean any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section
8
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of the Borrower or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, a Plan.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Committed Loan" shall mean any Committed Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or
Eurodollar Committed Loan.
"Event of Default" shall have the meaning assigned to such term in
Article VI.
"Excluded Subsidiary" means Avaya Receivables LLC, Mercury Insurance
Inc., Avaya International LLC and any special purpose entity established in
connection with an offering of Indebtedness secured by real property the
proceeds of which are used to reduce the Total Commitment in accordance with
Section 2.11(f).
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Fee Letter" shall mean the Fee Letter dated August 10, 2000, between
the Borrower, Xxxxxxx Xxxxx Xxxxxx Inc. and the Agent.
"Fees" shall mean the Facility Fee and the Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer or Treasurer of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
9
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at
a fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Hazardous Materials" shall mean (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreement" means interest rate swap or collar agreements,
interest rate future contracts, currency swap agreements, currency future
contracts and other similar agreements.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a Eurodollar
Loan with an Interest Period of more than three months' duration or a Fixed Rate
Loan with an Interest Period of more than 90 days' duration, each day that would
have been an Interest Payment Date for such Loan had successive Interest Periods
of three months' duration or 90 days' duration, as the case may be, been
applicable to such Loan and, in addition, the date of any conversion of such
Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3, 6 or to the extent available to each Lender, 9 or 12 months thereafter, as
the Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Maturity Date, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.05 or
repaid or prepaid in accordance with Section 2.07 or Section 2.12 and (c) as to
any Fixed Rate Borrowing, the period commencing on the date of such Borrowing
and ending on the date specified in the Competitive Bids in which the offer to
make the Fixed Rate Loans comprising such Borrowing were extended, which shall
not be earlier than four days after the date of such Borrowing or later than 360
days after the date of such Borrowing; PROVIDED, HOWEVER, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of
Eurodollar Loans only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue
10
from and including the first day of an Interest Period to but excluding the last
day of such Interest Period.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any equity interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of such Person, any capital contribution to such Person or any other
direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (g) or (h) of
the definition of "Debt" in respect of such Person. The amount of any Investment
shall be the original cash cost of such Investment plus the cost of all
additions thereto, without any adjustment for increases or decreases in value,
but shall be reduced by the amount of such Investment returned in cash.
"LIBO Rate" means, for any Interest Period for all of the Eurodollar
Loans comprising part of the same Borrowing, an interest rate per annum equal to
the rate per annum (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in United States dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period or, if for
any reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in United States dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Loan comprising
part of such Borrowing to be outstanding during such Interest Period (or, if any
Reference Bank shall not have such a Eurodollar Loan, $1,000,000) and for a
period equal to such Interest Period. The LIBO Rate for any Interest Period for
each of the Eurodollar Loans comprising part of the same Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, SUBJECT, HOWEVER, to the provisions of
Section 2.08.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan" shall mean a Competitive Loan or a Committed Loan, whether made
as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"Loan Documents" means this Agreement, any notes evidencing the Loans,
any guaranty delivered pursuant to Section 5.15 and, during the continuance of
the Security Period, the Collateral Documents.
"Loan Parties" means the Borrower and the Subsidiary Guarantors.
11
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the Board as
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Margin Stock" shall have the meaning given such term under Regulation
U of the Board.
"Marketable Securities" means any of the following, to the extent
owned by the Borrower free and clear of all Liens other than Liens created under
the Collateral Documents and having a maturity of not greater than 180 days from
the date of acquisition thereof: (a) readily marketable direct obligations of
the Government of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States, (b) insured certificates of deposit of or time
deposits with any commercial bank that is a Lender or a member of the Federal
Reserve System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the United States
or any State thereof and has combined capital and surplus of at least $500
million, (c) commercial paper in an aggregate amount of no more than $25,000,000
per issuer outstanding at any time, issued by any corporation organized under
the laws of any State of the United States and rated at least "Prime-1" (or the
then equivalent grade) by Moody's or "A-1" (or the then equivalent grade) by
S&P, (d) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) and entered into with a financial
institution satisfying the criteria in clause (b) or (e) other instruments as
set forth on the Borrower's policy as in effect on the date hereof, a copy of
which has been made available to each Lender.
"Material Adverse Effect" shall mean a material adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its subsidiaries taken as a whole.
"Material Subsidiary" of each Borrower, as the case may be, means, at
any time, each of its Subsidiaries having (a) assets with a value of not less
than 5% of the total value of the consolidated assets of such Borrower and its
Subsidiaries, taken as a whole, or (b) consolidated revenues not less than 5% of
the consolidated revenues of such Borrower and its Subsidiaries, taken as a
whole, in each case as of the end of or for most recently completed fiscal year
of such Borrower.
"Maturity Date" shall mean September 25, 2005.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
12
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one person other than the Borrower
or the ERISA Affiliate or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, transfer or other
disposition of any asset of Borrower or its Subsidiaries (excluding receivables)
and/or the sale, incurrence or issuance of any Debt in the capital markets or
equity interests by any Person, the aggregate amount of cash received from time
to time (whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and customary brokerage commissions, underwriting fees and discounts, legal
fees, finder's fees and other similar fees and commissions, (b) the amount of
taxes payable in connection with or as a result of such transaction and (c) the
amount of any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon such
disposition, in the case of (a) and (c) to the extent, but only to the extent,
that the amounts so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an Affiliate of such Person and in each case are
properly attributable to such transaction or to the asset that is the subject
thereof.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Lien" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies other than any such Lien that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained,
and as to which no Lien resulting therefrom has attached to its property and
become enforceable against its other creditors; (b) landlord's liens and Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of more than 60
days; (c) pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes
(e) governmental (Federal, state or municipal) liens arising out of contracts
for the purchase of products and deposits or pledges to obtain the release of
any of such liens; (f) liens created by or resulting from any litigation or
legal proceeding that is currently being contested in good faith by appropriate
proceedings; (g) deposits in connection with bids, tenders, contracts (other
than for the payment of money); (h) deposits in connection with obtaining or
maintaining self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions, social
security or similar matters; and (i) deposits of cash or obligations of the
United States of America to secure surety, appeal or customs bonds.
13
"Person" or "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating that has
been most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by the
Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be determined by reference
to the available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee will be set in accordance with Level V under the
definition of "Applicable Margin", "Applicable Percentage" or "Applicable
Utilization Fee", as the case may be; (c) if the ratings established by S&P and
Moody's shall fall within different levels and (x) the higher level is Level II
or lower, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the lower of such ratings or (y) the higher
level is Level I, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher of such ratings,
provided in the case of this clause (y) that if the lower of such ratings is
more than one level below the higher of such ratings, the Applicable Percentage,
the Applicable Margin and the Applicable Utilization Fee shall be determined by
reference to the level that is one level above such lower rating; (d) if any
rating established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly by the
rating agency making such change; and (e) if S&P or Moody's shall change the
basis on which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" shall mean Citibank, N.A., JPMorgan Chase Bank and
Deutsche Bank AG.
"Register" shall have the meaning given such term in Section 8.04(d).
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least 51% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding Committed
Loans representing at least 51% of the aggregate principal amount of the
Committed Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"S&P" shall mean Standard and Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"SEC" shall mean the Securities and Exchange Commission.
14
"Secured Parties" has the meaning specified in the Collateral Trust
Agreement.
"Security Agreement" means the Security Agreement dated as of March
25, 2002 made by the Borrower and the other grantors named therein in favor of
the Collateral Trustee.
"Security Period" means the period, if any, beginning with the
occurrence of the Collateral Trigger until the earlier of (a) the date
thereafter, if any, that (i) the Borrower's corporate credit rating shall be at
least BBB by S&P and the Borrower's Public Debt Rating shall be at least Baa2 by
Moody's and (ii) to the extent such corporate credit rating shall be BBB by S&P
or such Public Debt Rating shall be Baa2 by Moody's, such rating shall not be
accompanied by either (x) in the case of S&P, a negative outlook, creditwatch
negative or the equivalent thereof or (y) in the case of Moody's, a negative
outlook, a review for possible downgrade or the equivalent thereof, and (b) the
later of the repayment in full of all Advances and the Maturity Date.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no person other than the Borrower or the
ERISA Affiliate or (b) was so maintained and in respect of which the Borrower or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" shall mean, with respect to the Borrower, any
corporation, partnership, joint venture, limited liability company, trust or
estate, a majority of the Voting Shares of which are at the time owned or
controlled, directly or indirectly, by it or by one or more of its Subsidiaries
and required to be consolidated in accordance with GAAP in its consolidated
financial statements.
"Subsidiary Guarantors" means each Material Subsidiary that shall be
required to execute and deliver a guaranty pursuant to Section 5.15, but shall
not include any Excluded Subsidiary.
"Total Commitment" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Alternate Base Rate and the Fixed Rate.
"Voting Shares" shall mean, as to shares or other ownership interests
of a particular corporation, partnership, joint venture, limited liability
company, trust or estate (i) outstanding shares of stock of any class of such
corporation entitled to vote in the election of directors, excluding shares
entitled so to vote only upon the happening of some contingency, (ii) the
interests in the capital or profits of such partnership, joint venture or
limited liability company or (iii) the beneficial interest in such trust or
estate.
15
"Warburg Transactions" means the transactions contemplated by (i) the
Preferred Stock and Warrant Purchase Agreement dated as of August 8, 2000, by
and among the Borrower, Warburg, Xxxxxx Equity Partners, L.P. and the other
Purchasers party thereto, including the terms of the Series B convertible
participating preferred stock and warrants issued pursuant thereto and (ii) any
amendment of the terms of the Series B convertible participating preferred stock
or exchange or equity interests for shares of Series B convertible participating
preferred stock, in each case, to the extent permitted under Section 5.18(iv).
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Committed Loans to the Borrower, at
any time and from time to time on and after the date hereof and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Commitment minus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such Commitment pursuant
to Section 2.16, subject, however, to the conditions that (i) at no time shall
(A) the sum of (x) the outstanding aggregate principal amount of all Committed
Loans made by all Lenders plus (y) the outstanding aggregate principal amount of
all Competitive Loans made by all Lenders exceed (B) the Total Commitment, and
(ii) at all times the outstanding aggregate principal amount of all Committed
Loans made by each Lender shall equal the product of (A) the percentage which
its Commitment represents of the Total Commitment times (B) the outstanding
aggregate principal amount of all Committed Loans made pursuant to Section 2.04.
Each Lender's Commitment is set forth opposite its name in Schedule 2.01. Such
Commitments may be terminated or reduced from time to time pursuant to Section
2.11.
Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow Committed Loans hereunder, on and after the Closing Date and prior
to the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. LOANS. (a) Each Committed Loan shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; PROVIDED, HOWEVER, that the failure of any Lender
to make any Committed Loan
16
shall not in itself relieve any other Lender of its obligation to lend hereunder
(it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other
Lender). Each Competitive Loan shall be made in accordance with the procedures
set forth in Section 2.03. The Committed Loans or Competitive Loans comprising
any Borrowing shall be (i) in the case of Competitive Loans, in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$10,000,000 and (ii) in the case of Committed Loans, in an aggregate principal
amount which is an integral multiple of $1,000,000 and not less than $10,000,000
(or an aggregate principal amount equal to the remaining balance of the
available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Committed Borrowing
shall be comprised entirely of Eurodollar Committed Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; PROVIDED, HOWEVER, that the
Borrower shall not be entitled to request any Borrowing which, if made, would
result in an aggregate of more than 10 separate Committed Borrowings comprised
of Eurodollar Committed Loans being outstanding hereunder at any one time. For
purposes of the foregoing, Loans having different Interest Periods, regardless
of whether they commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in
New York,
New York, not later than
12:00 noon,
New York City time, and the Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of the
Borrower with the Agent or, if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders. Competitive Loans shall be made
by the Lender or Lenders whose Competitive Bids therefor are accepted pursuant
to Section 2.03 in the amounts so accepted. Committed Loans shall be made by the
Lenders pro rata in accordance with Section 2.16. Unless the Agent shall have
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Agent such Lender's portion of such
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Borrowing in accordance with this paragraph (c)
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have made such portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount shall constitute such
Lender's Loan as part of such Borrowing for purposes of this Agreement.
17
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Agent (i) in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the Agent's sole
discretion, and the Agent shall promptly notify the Borrower of such rejection
by telecopy. Each Competitive Bid Request shall refer to this Agreement and
specify (x) whether the Borrowing then being requested is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing, (y) the date of such Borrowing (which shall
be a Business Day) and the aggregate principal amount thereof which shall be in
a minimum principal amount of $10,000,000 and in an integral multiple of
$1,000,000, and (z) the Interest Period with respect thereto (which may not end
after the Maturity Date) and the interest payment date or dates relating
thereto. Promptly after its receipt of a Competitive Bid Request that is not
rejected as aforesaid, the Agent shall invite by telecopy (in the form set forth
in Exhibit A-2 hereto) the Lenders to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender invited to bid may, in its sole discretion, make one
or more Competitive Bids to the Borrower responsive to the Borrower's
Competitive Bid Request. Each Competitive Bid by a Lender must be received by
the Agent via telecopy, in the form of Exhibit A-3 hereto, (i) in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
day of a proposed Competitive Borrowing. Multiple bids will be accepted by the
Agent. Competitive Bids that do not conform substantially to the format of
Exhibit A-3 may be rejected by the Agent after conferring with, and upon the
instruction of, the Borrower, and the Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal amount (which shall
be in a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make to the Borrower, (y) the Competitive Bid Rate or Rates
at which the Lender is prepared to make the Competitive Loan or Loans and (z)
the Interest Period, the last day thereof and the interest payment date or dates
relating thereto. If any Lender invited to bid shall elect not to make a
Competitive Bid, such Lender shall so notify the Agent via telecopy (I) in the
case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing, and (II) in
the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on
the day of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that failure by
any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall promptly notify the Borrower, by telecopy, of all
the Competitive Bids made, the Competitive Bid Rate and the principal amount of
each Competitive
18
Loan in respect of which a Competitive Bid was made and the identity of the
Lender that made each bid. The Agent shall send a copy of all Competitive Bids
to the Borrower for its records as soon as practicable after completion of the
bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject only
to the provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject
Letter, whether and to what extent it has decided to accept or reject any of or
all the bids referred to in paragraph (c) above, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that (i) the failure by
the Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) the Borrower shall not accept a
bid made at a particular Competitive Bid Rate if it has decided to reject a bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) if the Borrower shall accept a
bid or bids made at a particular Competitive Bid Rate but the amount of such bid
or bids shall cause the total amount of bids to be accepted by the Borrower to
exceed the amount specified in the Competitive Bid Request, then the Borrower
shall accept a portion of such bid or bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED FURTHER,
HOWEVER, that if a Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender whether or not
its Competitive Bid has been accepted (and if so, in what amount and at what
Competitive Bid Rate) by telecopy sent by the Agent, and each successful bidder
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request. No Competitive
Borrowing shall be requested or made hereunder if after giving effect thereto
any of the conditions set forth in Section 2.01 would not be met.
(g) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the
19
latest time at which the other Lenders are required to submit their bids to the
Agent pursuant to paragraph (b) above.
(h) Upon the request of any Lender making a Competitive Loan, the
indebtedness of the Borrower resulting from such Competitive Loan shall be
evidenced by a separate promissory note of the Borrower in substantially the
form of Exhibit A-5 hereto payable to the order of the Lender making such
Competitive Loan.
(i) All notices required by this Section 2.03 shall be given in
accordance with Section 8.01.
SECTION 2.04. COMMITTED BORROWING PROCEDURE. In order to request a
Committed Borrowing, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Committed Borrowing Request in the form of Exhibit A-6 (a) in the
case of a Eurodollar Committed Borrowing, not later than 10:30 a.m., New York
City time, three Business Days before a proposed Borrowing and (b) in the case
of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Borrowing. No Fixed Rate Loan shall be requested or made pursuant
to a Committed Borrowing Request. Such notice shall be irrevocable and shall in
each case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Committed Borrowing or an ABR Borrowing; (ii) the date of such
Committed Borrowing (which shall be a Business Day) and the amount thereof; and
(iii) if such Borrowing is to be a Eurodollar Committed Borrowing, the Interest
Period with respect thereto, which shall not end after the Maturity Date. If no
election as to the Type of Committed Borrowing is specified in any such notice,
then the requested Committed Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Committed Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Notwithstanding any other provision of this
Agreement to the contrary, the Borrower shall not be entitled to request any
Committed Borrowing if the Interest Period requested with respect to such
Committed Borrowing would end after the Maturity Date. The Agent shall promptly
advise the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
SECTION 2.05. CONVERSION AND CONTINUATION OF COMMITTED LOANS. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Agent (i) not later than 10:30 a.m., New York City time, on the day of the
conversion, to convert all or any part of any Eurodollar Committed Borrowing
into an ABR Borrowing, (ii) not later than 10:30 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Committed Borrowing or to continue any Eurodollar Committed
Borrowing as a Eurodollar Committed Borrowing for an additional Interest Period
and (iv) not later than 10:30 a.m., New York City time, three Business Days
prior to conversion, to convert the Interest Period, with respect to any
Eurodollar Committed Borrowing to another permissible Interest Period, subject
in each case to the following:
(a) if less than all the outstanding principal amount of any Committed
Borrowing shall be converted or continued, the aggregate principal amount
of the Committed Borrowing converted or continued shall be an integral
multiple of $1,000,000 and not less than $10,000,000;
20
(b) accrued interest on a Committed Borrowing (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;
(c) if any Eurodollar Committed Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section 2.15;
(d) any portion of a Committed Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Eurodollar Committed Borrowing;
(e) any portion of a Eurodollar Committed Borrowing which cannot be
continued as a Eurodollar Committed Borrowing by reason of clause (d) above
shall be automatically converted at the end of the Interest Period in
effect for such Eurodollar Committed Borrowing into an ABR Borrowing; and
(f) no Interest Period may be selected for any Eurodollar Committed
Borrowing that would end later than the Maturity Date.
Each notice of the Borrower pursuant to this Section 2.05 shall be
irrevocable and shall refer to this Agreement and specify (i) the identity and
amount of the Committed Borrowing that the Borrower requests to be converted or
continued, (ii) whether such Committed Borrowing is to be converted to or
continued as a Eurodollar Committed Borrowing or an ABR Borrowing, (iii) if such
notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (iv) if such Committed Borrowing is to be converted to or
continued as a Eurodollar Committed Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Committed Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.05 to convert or continue any Committed Borrowing, such Committed
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted or continued
into a new Interest Period as an ABR Borrowing.
SECTION 2.06. FEES. (a) The Borrower agrees to pay to each Lender,
through the Agent, on each March 31, June 30, September 30 and December 31 (with
the first payment being due on September 30, 2002) and on the date on which the
Commitment of such Lender shall be terminated or reduced as provided herein, a
facility fee (a "Facility Fee") equal to the Applicable Percentage per annum in
effect from time to time on the average daily amount of the Commitment of such
Lender, whether used or unused, during the preceding quarter (or other period
commencing on the date of this Agreement, or ending with the Maturity Date or
any date on which the Commitment of such Lender shall be terminated or reduced).
All Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each Lender shall
commence to accrue on the date of this Agreement, and shall cease to accrue on
the earlier of the Maturity Date and the termination of the Commitment of such
Lender as provided herein.
21
(b) The Borrower agrees to pay the Agent, for its own account, the
administrative and other fees referred to in the Fee Letter (the "Administrative
Fees") at the times and in the amounts agreed upon in the Fee Letter.
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby agrees that the outstanding principal balance of each Committed Loan
shall be payable on the Maturity Date, and that the outstanding principal
balance of each Competitive Loan shall be payable on the last day of the
Interest Period applicable thereto. Each Loan shall bear interest on the
outstanding principal balance thereof as set forth in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid such lending office of such Lender from
time to time under this Agreement.
(c) The Agent shall maintain the Register pursuant to Section 8.04(d),
and a subaccount for each Lender, in which Register and accounts (taken
together) shall be recorded (i) the amount of each Loan made hereunder, the Type
of each Loan made and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant
to paragraph (b) and (c) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Agent to maintain such account, such Register or
such subaccount, as applicable, or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans made to the Borrower by
such Lender in accordance with their terms.
(e) The Borrower agrees that upon notice by any Lender after the
initial borrowing hereunder to the Borrower (with a copy to the Agent) to the
effect that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Committed Loans owing to, or to be made
by, such Lender, the Borrower shall promptly, execute and deliver to such
Lender, with a copy to the Agent, a promissory note or notes, in substantially
the form of Exhibit B hereto, payable to the order of such Lender in a principal
amount equal to the Commitment of such Lender.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the
22
case of each Eurodollar Committed Loan, the LIBO Rate for the Interest Period in
effect for such Borrowing plus (x) the Applicable Margin from time to time in
effect plus (y) the Applicable Utilization Fee from time to time in effect and
(ii) in the case of each Eurodollar Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Margin offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, for
periods during which the Alternate Base Rate is determined by reference to the
Base Rate and 360 days for periods during which the Alternate Base Rate is
determined by reference to the Federal Funds Effective Rate) at a rate per annum
equal to the Alternate Base Rate from time to time in effect plus (x) the
Applicable Margin from time to time in effect plus (y) the Applicable
Utilization Fee from time to time in effect.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined in good faith
by the Agent, and such determination shall be conclusive absent manifest error.
(e) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurodollar Loan and each LIBO
Rate. If any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate,
the Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest rate determined by
the Agent for purposes of Section 2.08(a), (b) or (c), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.08(a).
(f) If fewer than two Reference Banks furnish timely information to
the Agent for determining the LIBO Rate for any Eurodollar Loan,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Loans,
(ii) with respect to Eurodollar Loans, each such Loan will
automatically, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrower or be automatically converted into a
Base Rate Loan, and
(iii) the obligation of the Lenders to make Eurodollar Loans or to
convert Base Rate Loans into Eurodollar Loans shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
23
(g) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(b) or (c), (i) each Eurodollar Committed Loan will
automatically, on the last day of the then existing Interest Period therefor, be
converted into Base Rate Loans and (ii) the obligation of the Lenders to make,
or to convert Advances into, Eurodollar Committed Loans shall be suspended.
SECTION 2.09. DEFAULT INTEREST. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, the Borrower shall on demand from time to time from the Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Alternate Base Rate plus 2%.
SECTION 2.10. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Agent shall have determined in
good faith (i) that dollar deposits in the principal amounts of the Eurodollar
Loans comprising such Borrowing are not generally available in the London
interbank market or (ii) that reasonable means do not exist for ascertaining the
LIBO Rate, the Agent shall, as soon as practicable thereafter, give telecopy
notice of such determination to the Borrower and the Lenders. In the event of
any such determination under clauses (i) or (ii) above, until the Agent shall
have advised the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (x) any request by the Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no force and effect
and shall be denied by the Agent and (y) any request by the Borrower for a
Eurodollar Committed Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing. In the event a Lender notifies the Agent that the
rates at which dollar deposits are being offered will not adequately and fairly
reflect the cost to such Lender of making or maintaining its Eurodollar Loan
during such Interest Period, the Agent shall notify the Borrower of such notice
and until the Lender shall have advised the Agent that the circumstances giving
rise to such notice no longer exist, any request by the Borrower for a
Eurodollar Committed Borrowing shall be deemed a request for an ABR Borrowing
for the same Interest Period with respect to such Lender. Each determination by
the Agent hereunder shall be in good faith and conclusive absent manifest error.
SECTION 2.11. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The
Commitments shall be automatically terminated on the Maturity Date. In addition,
the Total Commitment shall be automatically and permanently reduced on the
following dates to the amount indicated, to the extent the Total Commitment
exceeds such amount on such date:
--------------------------------------------------
Date Reduced Total
Commitment
Amount
--------------------------------------------------
December 1, 2003 $500,000,000
--------------------------------------------------
24
--------------------------------------------------
March 1, 2004 $425,000,000
--------------------------------------------------
June 1, 2004 $350,000,000
--------------------------------------------------
September 1, 2004 $250,000,000
--------------------------------------------------
(b) Upon at least three Business Days' prior irrevocable telecopy
notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $10,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Loans. Once terminated or reduced,
the Total Commitment may not be reinstated.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower shall pay to the Agent for the account of the Lenders, on the date of
each termination or reduction of the Commitment, the Facility Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) The Total Commitment shall be automatically reduced one Business
Day after the date that the Borrower or any of its Subsidiaries receives Net
Cash Proceeds from the issuance of Debt in the capital markets having a maturity
in excess of one year (other than any such Debt constituting refinancing Debt
pursuant to Section 5.17(ii)(B)) by an amount equal to 50% of the amount of such
Net Cash Proceeds, PROVIDED that the Total Commitment shall not be reduced
pursuant to this clause (d) below an amount equal to $250,000,000 minus the
amount of any reduction of the Total Commitment in accordance with Section
5.19(x).
(e) The Total Commitment shall be automatically reduced one Business
Day after the date that the Borrower or any of its Subsidiaries receives Net
Cash Proceeds from the sale or other disposition of assets (other than (i) sales
or dispositions of inventory in the ordinary course of business, (ii)
dispositions of accounts receivable in accordance with Section 5.07(viii), (iii)
sales or dispositions of assets listed on Schedule 2.11 hereto or (iv) sales of
assets for cash and having a fair market value in an aggregate amount not to
exceed $25,000,000 in any fiscal year of the Borrower) by an amount equal to
such Net Cash Proceeds, PROVIDED that the Total Commitment shall not be reduced
pursuant to this clause (e) below an amount equal to $250,000,000 minus the
amount of any reduction of the Total Commitment in accordance with Section
5.19(x), PROVIDED FURTHER that, so long as no Event of Default or Default shall
have occurred and be continuing, no reduction shall be required pursuant to this
subsection (e) unless and until such time, and from time to time thereafter,
when the aggregate amount of such Net Cash Proceeds that have not previously
been applied to a reduction of the Total Commitment shall exceed $10,000,000.
25
(f) The Total Commitment shall be automatically reduced one Business
Day after the date that the Borrower or any of its Subsidiaries receives Net
Cash Proceeds from a financing permitted by Section 5.17(ii)(C) by an amount
equal to such Net Cash Proceeds, PROVIDED that the Total Commitment shall not be
reduced pursuant to this clause (f) below an amount equal to $250,000,000 minus
the amount of any reduction of the Total Commitment in accordance with Section
5.19(x).
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at
any time and from time to time to prepay any Committed Borrowing, in whole or in
part, upon giving telecopy notice (or telephone notice promptly confirmed by
telecopy notice) to the Agent: (i) before 10:00 a.m., New York City time, two
Business Days prior to prepayment, in the case of Eurodollar Loans, and (ii)
before 10:00 a.m., New York City time, on the same Business Day of prepayment,
in the case of ABR Loans; PROVIDED, HOWEVER, that each partial prepayment shall
be in an amount which is an integral multiple of $1,000,000 and not less than
$5,000,000. The Borrower shall not have the right to prepay any Competitive
Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Borrower shall pay or prepay so much of the
Committed Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Committed Loans outstanding will not exceed
the Total Commitment, after giving effect to such termination or reduction.
(c) Each notice of prepayment from the Borrower shall specify the
prepayment date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section 2.12 shall be subject to Section
2.15 but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on such Lender or the London interbank market any other condition
affecting this Agreement, such Lender's Commitment or any Eurodollar Loan, or
Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrower
will pay to such Lender upon demand such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
Notwithstanding the foregoing, no Lender shall be entitled to request
compensation under this paragraph with respect to any Competitive Loan if the
change giving
26
rise to such request was applicable to such Lender at the time of submission of
the Competitive Bid pursuant to which such Competitive Loan shall have been
made.
(b) If any Lender shall have determined that the applicability of any
law, rule, regulation or guideline adopted after the date hereof pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards," or the adoption after the date
hereof of any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement, such Lender's Commitment or
the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time the Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of the Lender setting forth such amount or amounts
(including computation of such amount or amounts) as shall be necessary to
compensate the Lender or its holding company as specified in paragraph (a) or
(b) above, as the case may be, shall be delivered to the Borrower and such
amount or amounts may be reviewed by the Borrower. Unless the Borrower disagrees
in good faith with the computation of the amount or amounts in such certificate,
the Borrower shall pay to the Lender, within 10 Business Days after receipt by
the Borrower of such certificate delivered by the Lender, the amount shown as
due on any such certificate. If the Borrower, after receipt of any such
certificate from the Lender, disagrees with the Lender on the computation of the
amount or amounts owed to the Lender pursuant to paragraph (a) or (b) above, the
Lender and the Borrower shall negotiate in good faith to promptly resolve such
disagreement. In either case, however, the Lender shall have a duty to mitigate
the damages that may arise as a consequence of paragraph (a) or (b) above to the
extent that such mitigation will not, in the judgment of the Lender, entail any
cost or disadvantage to the Lender that the Lender is not reimbursed or
compensated for by the Borrower.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to any other period;
PROVIDED that if any Lender fails to make such demand within 45 days after it
obtains knowledge of the event giving rise to the demand such Lender shall, with
respect to amounts payable pursuant to this Section 2.13 resulting from such
event, only be entitled to payment under this Section 2.13 for such costs
incurred or reduction in amounts or return on capital from and after the date 45
days prior to the date that such Lender does make such demand. The protection of
this Section shall be available to each Lender regardless of any
27
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by 30 days' (or
such shorter period as shall be required in order to comply with applicable law)
written notice to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon such Lender shall not submit a Competitive
Bid in response to a request for Eurodollar Competitive Loans and any
request by the Borrower for a Eurodollar Committed Borrowing shall, as to
such Lender only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii)
above, all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.15. INDEMNITY. The Borrower shall indemnify each Lender
against any out-of-pocket loss or expense which such Lender may sustain or incur
as a consequence of (a) any failure by the Borrower to borrow or to refinance,
convert or continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing, conversion or continuation has been given pursuant to
Section 2.03, 2.04 or 2.05, (b) any payment, prepayment or conversion, or an
assignment required under Section 2.20, of a Eurodollar Loan by the Borrower
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default by the Borrower in payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (d) the occurrence of any Event of Default.
In the case of a Eurodollar Loan, such out-of-pocket loss or expense
shall be limited to an amount equal to the excess, if any, of (i) its cost of
obtaining the funds for the Loan
28
being paid, prepaid, converted or not borrowed, converted or continued (based on
the LIBO Rate applicable thereto) for the period from the date of such payment,
prepayment, conversion or failure to borrow, convert or continue to the last day
of the Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the Interest Period for such Loan which would have
commenced on the date of such failure) over (ii) the amount of interest that
would be realized by the Lender in reemploying the funds so paid, prepaid,
converted or not borrowed, converted or continued for such period or Interest
Period, as the case may be. In the case of an ABR Loan, such out-of-pocket loss
or expense shall be limited to an amount equal to the excess, if any, of (i) its
cost of obtaining the funds for the ABR Loan being paid, prepaid, converted or
not borrowed, converted or continued for the period from the date of such
payment, prepayment, conversion or failure to borrow, convert or continue to the
next Business Day for such ABR Loan over (ii) the amount of interest that would
be realized by the Lender in reemploying the funds so paid, prepaid, converted
or not borrowed, converted or continued until the next Business Day, as the case
may be.
A certificate of the Lender setting forth such amount or amounts
(including the computation of such amount or amounts) as shall be necessary to
compensate the Lender or its holding company for the out-of-pocket expenses
defined herein shall be delivered to the Borrower and such amount or amounts may
be reviewed by the Borrower. If the Borrower, after receipt of any such
certificate from the Lender, disagrees in good faith with the Lender on the
computation of the amount owed to the Lender pursuant to this Section 2.15, the
Lender and the Borrower shall negotiate in good faith to promptly resolve such
disagreement.
Each Lender shall have a duty to mitigate the damages to such Lender
that may arise as a consequence of clause (a), (b), (c) or (d) above to the
extent that such mitigation will not, in the judgment of such Lender, entail any
cost or disadvantage to such Lender that such Lender is not reimbursed or
compensated for by the Borrower.
SECTION 2.16. PRO RATA TREATMENT. Except as required under Sections
2.10, 2.13, 2.14, 2.15, 2.19 and 2.20, each Committed Borrowing, each payment or
prepayment of principal of any Committed Borrowing, each payment of interest on
the Committed Loans, each payment of the Facility Fees, each reduction of the
Commitments and each refinancing or conversion of any Borrowing with a Committed
Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Committed Loans). Each payment of principal of any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made
29
hereunder, the Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Committed Loan or
Loans as a result of which the unpaid principal portion of the Committed Loans
of such Lender shall be proportionately less than the unpaid principal portion
of the Committed Loans of any other Lender, it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, a participation in the Committed Loans
of such other Lender, so that the aggregate unpaid principal amount of the
Committed Loans and participations in the Committed Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Committed Loans then outstanding as the principal amount of its Committed Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Committed Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; PROVIDED,
HOWEVER, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Committed Loan deemed to have been so purchased may exercise any and all rights
of banker's lien, setoff or counterclaim with respect to any and all moneys
owing by the Borrower to such Lender by reason thereof as fully as if such
Lender had made a Committed Loan directly to the Borrower in the amount of such
participation.
SECTION 2.18. PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder from an account in the United States not later than 12:00
noon, New York City time, on the date when due in dollars to the Agent at its
offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, in immediately available
funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.19. TAXES. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
imposed by the United States or any political subdivision or taxing authority
thereof, excluding taxes imposed on the Agent's or any Lender's (or any
transferee's or assignee's, including a participation holder's (any such entity
a "Transferee")) net income and
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franchise taxes imposed on the Agent or any Lender (or Transferee) by the United
States or any political subdivision or taxing authority thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender (or any Transferee) or the Agent, (i) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.19) such Lender (or Transferee) or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement imposed by the United States or any political subdivision or taxing
authority thereof (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes on amounts payable under this Section 2.19) paid by such Lender (or
Transferee) or the Agent, as the case may be, with respect to the Borrower and
any liability (including penalties, interest and reasonable out-of-pocket
expenses) arising therefrom or with respect thereto (other than any such
liability that results from the gross negligence or willful misconduct of the
Lender (or Transferee) or Agent), whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant taxing authority or other
Governmental Authority. Such indemnification shall be made within 30 days after
the date any Lender (or Transferee) or the Agent, as the case may be, makes
written demand therefor. If the Borrower or any Lender (or Transferee) or the
Agent shall determine that Taxes or Other Taxes may not have been correctly or
legally assessed by the relevant taxing authority or other Governmental
Authority, and that a Lender (or Transferee) or the Agent may be entitled to
receive a refund in respect of Taxes or Other Taxes, it shall promptly notify
the other party of the availability of such refund and such Lender (or
Transferee) or the Agent shall, within 60 days after receipt of a request by the
Borrower, apply for such refund at the Borrower's expense. If any Lender (or
Transferee) or the Agent receives a refund or credit or offset against another
tax liability in respect of any Taxes or Other Taxes for which such Lender (or
Transferee) or the Agent has received payment from the Borrower hereunder it
shall promptly repay such refund or credit or offset against another tax
liability (including any interest received by such Lender (or Transferee) or the
Agent from the taxing authority with respect to the refund with respect to such
Taxes or Other Taxes) to the Borrower, net of all out-of-pocket expenses of such
Lender; PROVIDED that the Borrower, upon the request of such Lender (or
Transferee) or the Agent, agrees to return such refund or credit or offset
against another tax liability (plus penalties, interest or other charges) to
such Lender (or Transferee) or the Agent in the event such Lender (or
Transferee) or the Agent is required to repay such refund or credit or offset
against another tax liability. For purposes of the preceding sentence, the Agent
or any Lender shall determine in good faith and in its discretion the amount of
any credit or offset against another tax liability and shall be under no
obligation to make available to the Borrower any of its tax returns or any other
information that it deems to be confidential.
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(d) As soon as practicable after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to in Section 8.01, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Lender (or Transferee) which is organized outside the United
States shall, prior to the due date of the first payment by the Borrower to such
Lender (or Transferee) hereunder, deliver to the Borrower such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form W-8BEN or Form
W-8ECI and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any subsequent version
thereof, properly completed and duly executed by such Lender (or Transferee)
establishing that such payment is (i) not subject to withholding under the Code
because such payment is effectively connected with the conduct by such Lender
(or Transferee) of a trade or business in the United States or (ii) totally
exempt from United States tax under a provision of an applicable tax treaty.
Each such Lender (or Transferee) that changes its funding office shall promptly
notify the Borrower of such change and, upon written request from the Borrower,
shall deliver any new certificates, documents or other evidence required
pursuant to the preceding sentence prior to the immediately following due date
of any payment by the Borrower hereunder. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that payments
hereunder are not subject to United States withholding tax, notwithstanding
paragraph (a), the Borrower or the Agent shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any Lender
(or Transferee) organized under the laws of a jurisdiction outside the United
States.
(g) The Borrower shall not be required to pay any additional amounts
to any Lender (or Transferee) in respect of Taxes and Other Taxes pursuant to
paragraphs (a), (b) and (c) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender (or Transferee)
to comply with the provisions of paragraph (f) above unless such Lender (or
Transferee) is unable to comply with paragraph (f) because of (i) a change in
applicable law, regulation or official interpretation thereof or (ii) an
amendment, modification or revocation of any applicable tax treaty or a change
in official position regarding the application or interpretation thereof, in
each case after the date hereof (and, in the case of a Transferee, after the
date of assignment or transfer).
(h) Any Lender (or Transferee) claiming any additional amounts payable
under this Section 2.19 shall (i) to the extent legally able to do so, file any
certificate or document if such filing would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue, and the
Borrower shall not be obligated to pay such additional amounts if, any Lender
(or Transferee) could have filed such certificate or document and failed to do
so; or (ii) consistent with legal and regulatory restrictions, use reasonable
efforts to change the jurisdiction of its applicable lending office if the
making of such change would avoid the need for or reduce the amount of any
additional amounts which may thereafter accrue and would not,
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in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
SECTION 2.20. MANDATORY ASSIGNMENT; COMMITMENT TERMINATION. In the
event any Lender delivers to the Agent or the Borrower, as appropriate, a
certificate in accordance with Section 2.13(c) or a notice in accordance with
Section 2.10 or 2.14 or is a Defaulting Lender, or the Borrower is required to
pay any additional amounts or other payments in accordance with Section 2.19,
the Borrower may, at its own expense, and in its sole discretion (a) require
such Lender to transfer and assign in whole or in part, without recourse (in
accordance with Section 8.04), all or part of its interests, rights and
obligations under this Agreement (other than outstanding Competitive Loans) to
an assignee acceptable to the Agent which shall assume such assigned obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
PROVIDED that (i) such assignment shall not conflict with any law, rule or
regulation or order of any court or other Governmental Authority and (ii) the
Borrower or such assignee shall have paid to the assigning Lender in immediately
available funds the principal of and interest accrued to the date of such
payment on the Loans made by it hereunder and all other amounts owed to it
hereunder or (b) terminate the Commitment of such Lender and prepay all
outstanding Loans (other than Competitive Loans) of such Lender; PROVIDED that
(x) such termination of the Commitment of such Lender and prepayment of Loans
does not conflict with any law, rule or regulation or order of any court or
Governmental Authority, (y) the Borrower shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans (other than Competitive Loans) made by it hereunder
and all other amounts owed to it hereunder and (z) the Borrower shall have paid
to the Agent a processing and recordation fee of $3,500 if such assignee is not
an existing Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. It (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in every jurisdiction
where such qualification is required, except where the failure so to qualify
would not result in a Material Adverse Effect, and (d) has the corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and to borrow funds hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance
by it of this Agreement and the Borrowings by it hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate actions
and (b) will not (i) violate (A) any provision of any law, statute, rule or
regulation (including, without limitation, the Margin Regulations) or of its
certificate of incorporation or other constitutive documents or by-laws, (B) any
order of any Governmental Authority or (C) any provision of any indenture,
agreement
33
or other instrument to which it is a party or by which it or any of its property
is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any lien upon any of its property or assets.
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly executed
and delivered by it and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms.
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions.
SECTION 3.05. FINANCIAL STATEMENTS. (a) The Borrower has heretofore
furnished to the Agent and the Lenders copies of its consolidated financial
statements as of and for (i) the fiscal year ended September 30, 2001 as
included in the Borrower's Annual Report on Form 10-K filed with the Securities
and Exchange Commission on December 26, 2001 (the "2001 Form 10-K") and (ii) the
quarter ended March 31, 2002, and included in the Borrower's Quarterly Report on
Form 10-Q filed May 15, 2002. Such financial statements present fairly, in all
material respects, the consolidated financial condition of the Borrower as of
such date and for such periods in accordance with GAAP.
(b) Except as disclosed in the Borrower's 2001 Form 10-K, the press
release dated January 17, 2002 reporting the Borrower's financial results for
the fiscal quarter ended December 31, 2001, the Borrower's Quarterly Report on
Form 10-Q dated May 15, 2002, the Borrower's Quarterly Report on Form 10-Q filed
August 14, 2002, the press release dated July 22, 2002 and the press release
dated July 26, 2002, there has been no material adverse change in the
consolidated business, assets, operations or condition, financial or otherwise,
of the Borrower and its Subsidiaries taken as a whole since September 30, 2001.
For purposes of this representation a change in the Public Debt Rating of the
Borrower shall not constitute a material adverse change.
SECTION 3.06. LITIGATION; COMPLIANCE WITH LAWS. (a) (i) There are no
actions or proceedings filed or (to its knowledge) investigations pending or
threatened against it in any court or before any Governmental Authority or
arbitration board or tribunal which question the validity, enforceability or
legality of or seek damages in connection with this Agreement, the Transactions
or any action taken or to be taken pursuant to this Agreement and no order or
judgment has been issued or entered restraining or enjoining it from the
execution, delivery or performance of this Agreement nor is there any action or
proceeding which involves a probable risk of an adverse determination which
would have any such effect; (ii) nor is there any other action or proceeding
filed or (to its knowledge) investigation pending or threatened against it in
any court or before any Governmental Authority or arbitration board or tribunal
which involves a probable risk of a material adverse decision which would result
in a Material Adverse Effect except as provided in the Borrower's Quarterly
Report on Form 10-Q filed August 14, 2002, or materially restrict the ability
of it to comply with its obligations under this Agreement.
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(b) Neither it nor any of its subsidiaries is in violation of any law,
rule or regulation, or in default with respect to any judgment, writ, injunction
or decree of any Governmental Authority, where such violation or default could
result in a Material Adverse Effect except as provided in the Borrower's
Quarterly Report on Form 10-Q filed August 14, 2002.
SECTION 3.07. FEDERAL RESERVE REGULATIONS. (a) Neither it nor any of
its subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Margin Regulations.
SECTION 3.08. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither it nor any of its subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. USE OF PROCEEDS. All proceeds of the Loans shall be
used for general corporate purposes of the Borrower, including refunding of
debt, support for commercial paper and acquisition financing.
SECTION 3.10. NO MATERIAL MISSTATEMENTS. No report, financial
statement or other written information furnished by it or on its behalf to the
Agent or any Lender pursuant to Section 3.05 or Section 5.02 hereof contains as
of the date hereof in the case of Section 3.05, or will contain as of the date
furnished in the case of Section 5.02, any material misstatement of fact or
omits or will omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were or will be
made, not misleading.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing:
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in the Loan Documents
shall be true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an earlier
date; PROVIDED that the representations and warranties in Section 3.05(b) and
Section 3.06(a)(ii) shall only be made upon the Closing Date, at the time of
35
each extension of the Maturity Date in accordance with Section 2.22 and on the
occasion of any Borrowing the proceeds of which are not used to refund
commercial paper.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein in all material respects, and at the time of and
immediately after such Borrowing no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. CLOSING DATE. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of (i) a
corporate counsel of the Borrower, dated the Closing Date and addressed to
the Lenders, to the effect set forth in Exhibit D hereto and (ii) Shearman
& Sterling, counsel for the Agent, in form and substance satisfactory to
the Agent.
(b) The Agent shall have received (i) a long form certificate as to
the certificate of incorporation, including all amendments thereto, of the
Borrower as of a recent date by the Secretary of State of the state of
incorporation of the Borrower and a certificate as to the good standing of
the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or an Assistant Secretary of the Borrower
dated the Closing Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws of the Borrower as in effect on the
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below except for any changes specified
in such certificate, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Borrower
authorizing the execution, delivery and performance of this Agreement and
the Borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate of incorporation of the Borrower has not been amended since the
date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing this Agreement
or any other document delivered in connection herewith on behalf of the
Borrower; and (iii) a certificate of another officer of the Borrower as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above.
(c) The Agent shall have received a certificate from the Borrower,
dated the Closing Date and signed by a Financial Officer of the Borrower
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(d) The Agent shall have received any Fees and other amounts due and
payable on or prior to the Closing Date
(e) The Agent shall have received on or prior to the Closing Date (i)
the duly executed aircraft security agreement as contemplated by the
Security Agreement and in form and substance satisfactory the Agent, and
shall have completed all filings and
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delivered all opinions requested in connection therewith, and (ii) the duly
executed guaranty made by the Borrower in respect of obligations of its
Subsidiaries to the Lenders.
ARTICLE V
COVENANTS
The Borrower covenants and agrees as to itself and with each Lender
and the Agent that so long as this Agreement shall remain in effect or the
principal of or interest on any Loan, any Fees or any other expenses or amounts
payable hereunder shall be unpaid unless the Required Lenders shall otherwise
consent in writing:
SECTION 5.01. EXISTENCE. It will do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 5.06.
SECTION 5.02. FINANCIAL STATEMENTS, REPORTS, ETC.. It will furnish to
the Agent and each Lender:
(a) within 105 days after the end of each fiscal year, its
consolidated balance sheets and the related statements of income and cash
flows, showing its consolidated financial condition as of the close of such
fiscal year and the consolidated results of its operations during such
year, all audited by PricewaterhouseCoopers LLC or other independent
auditors of recognized national standing and accompanied by an opinion of
such auditors to the effect that such consolidated financial statements
fairly present in all material respects its financial condition and results
of operations on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
statements of income and cash flows, showing its consolidated financial
condition as of the close of such fiscal quarter and the consolidated
results of its operations during such fiscal quarter and the then elapsed
portion of such fiscal year, all certified by one of its Financial Officers
as fairly presenting in all material respects its financial condition and
results of operations on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) above, a certificate of a Financial Officer (i) certifying
that no Event of Default or Default has occurred and is continuing or, if
such an Event of Default or Default has occurred and is continuing,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (ii) setting forth in
reasonable detail the calculations necessary to demonstrate compliance with
Section 5.08;
(d) promptly after the same become publicly available, copies of all
reports filed by it with the SEC (other than reports on Form 8-K which are
filed solely for the purpose
37
of filing exhibits), or any Governmental Authority succeeding to any of or
all the functions of the SEC, or distributed to its shareholders, as the
case may be; and
(e) promptly after a Financial Officer becomes aware thereof, notice
of each Default or Event of Default that is continuing, specifying the
nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto.
Reports and financial statements required to be delivered by the
Borrower pursuant to paragraphs (a), (b) and (d) of this Section 5.02 shall be
deemed to have been delivered on the date on which it posts such reports, or
reports containing such financial statements, on its website on the Internet at
xxx.xxxxx.xxx or when such reports, or reports containing such financial
statements are posted on the SEC's website at xxx.xxx.xxx; PROVIDED that it
shall deliver paper copies of the reports and financial statements referred to
in paragraphs (a), (b) and (d) of this Section 5.02 to the Agent or any Lender
who requests it to deliver such paper copies until written notice to cease
delivering paper copies is given by the Agent or such Lender; and PROVIDED
FURTHER that in every instance it shall provide paper copies of the certificate
required by subsection (c) to the Agent and each of the Lenders until such time
as the Agent shall provide it written notice otherwise.
SECTION 5.03. MAINTAINING RECORDS. It will record, summarize and
report all financial information in accordance with GAAP.
SECTION 5.04. USE OF PROCEEDS. It will use the proceeds of the Loans
only for the purposes set forth in Section 3.09.
SECTION 5.05. COMPLIANCE WITH LAWS, ETC.. It will comply in all
material respects with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and
Environmental Laws.
SECTION 5.06. CONSOLIDATIONS, MERGERS, AND SALES OF ASSETS. It will
not merge or consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to,
any Person, except that the Borrower may merge or consolidate with any other
Person so long as (a) the Borrower is the surviving corporation, or (b) if the
Borrower is not the surviving corporation, (i) the surviving corporation
expressly assumes the obligations of the Borrower under this Agreement and the
Notes and (ii) the surviving corporation has a Public Debt Rating of not lower
than BBB- from S&P and Baa3 from Xxxxx'x, PROVIDED, in each case, that no
Default or Event of Default would result therefrom.
SECTION 5.07. LIMITATIONS ON LIENS. The Borrower will not create or
suffer to exist, or permit any of its Material Subsidiaries to create or suffer
to exist, any Lien on or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its Material
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens;
(ii) Liens existing on September 25, 2000 securing Debt of the
Borrower or its Material Subsidiaries outstanding on such
date;
38
(iii) purchase money Liens upon or in or conditional sales
agreements or other title retention agreements with respect
to, real property or equipment acquired or held by the
Borrower or any of its Material Subsidiaries in the ordinary
course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for
the purpose of financing the acquisition, construction or
improvement of any such property or equipment to be subject to
such Liens (including any Liens placed on such property or
equipment within 180 days after the latest of the acquisition,
completion of construction or improvement of such property),
or Liens existing on any such property or equipment at the
time of acquisition (other than any such Liens created in
contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals, refundings or
replacements of any of the foregoing for the same or a lesser
amount; PROVIDED, HOWEVER, that no such Lien shall extend to
or cover any property other than the property or equipment
being acquired, constructed or improved, and no such
extension, renewal, refunding or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed, refunded or replaced (except to the
extent of financed construction or improvement);
(iv) Liens (including financing statements and undertakings to file
financing statements) arising solely from precautionary
filings of financing statements under the Uniform Commercial
Code of the applicable jurisdiction in respect of equipment
leases under which the Borrower or any of its Material
Subsidiaries is the lessee; PROVIDED that any such Lien in
respect of any equipment lease is limited to the equipment
being leased under such lease and the proceeds thereof;
(v) any Lien existing on any asset of any corporation at the time
such corporation becomes a Material Subsidiary and not created
in contemplation of such event;
(vi) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the
Borrower or a Material Subsidiary and not created in
contemplation of such event;
(vii) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Material Subsidiary and not
created in contemplation of such acquisition;
(viii) assignments of the right to receive income in connection with
any financing pursuant to which the Borrower or any Subsidiary
of the Borrower may sell convey or otherwise transfer to any
Person, or xxxxx x Xxxx on, any accounts receivable (and
related assets) of the Borrower or such Subsidiary, PROVIDED
that such financing shall be on customary market terms and
shall be with limited recourse to the Borrower and its
Subsidiaries (other than a bankruptcy-remote, special purpose
wholly
39
owned Subsidiary of the Borrower) except to the extent
customary for such transactions;
(ix) synthetic leases in effect as of the Amendment No. 2 Effective
Date and synthetic lease transactions on properties owned as
of the date hereof in an aggregate principal amount not to
exceed $50,000,000;
(x) Liens not otherwise permitted by the foregoing clauses of this
definition securing Debt of the Borrower or its Material
Subsidiaries in an aggregate principal amount at any time
outstanding not to exceed the greater of $75,000,000 or 15% of
Consolidated Net Worth;
(xi) any Lien 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 (x) such
Debt is not secured by any additional assets, and (y) the
amount of such Debt secured by any such Lien is not increased;
and
(xii) Liens created under the Collateral Documents.
SECTION 5.08. INTEREST COVERAGE RATIO. It will maintain a ratio of
Consolidated EBITDA of the Borrower and its Subsidiaries to interest expense for
the period consisting of the previous four consecutive fiscal quarters by the
Borrower and its Subsidiaries of not less than the ratios set forth below for
periods indicated:
----------------------------------------------------------------
FISCAL QUARTER ENDED RATIO
----------------------------------------------------------------
September 30, 2002 through March 1.70 to 1
31, 2003
----------------------------------------------------------------
June 30, 2003 2.25 to 1
----------------------------------------------------------------
September 30, 2003 3.50 to 1
----------------------------------------------------------------
December 31, 2003 and thereafter 4.00 to 1
----------------------------------------------------------------
SECTION 5.09. MINIMUM EBITDA. It will maintain, as of the end of each
period set forth below, Consolidated EBITDA of the Borrower and its Subsidiaries
of not less than the amount set forth below for such period:
--------------------------------------------------------------------
PERIOD MINIMUM EBITDA
--------------------------------------------------------------------
January 1, 2002 through September 30, 2002 $ 70,000,000
--------------------------------------------------------------------
January 1, 2002 through December 31, 2002 $100,000,000
--------------------------------------------------------------------
Four quarters ending March 31, 2003 $115,000,000
--------------------------------------------------------------------
Four quarters ending June 30, 2003 $150,000,000
--------------------------------------------------------------------
Four quarters ending September 30, 2003 $250,000,000
--------------------------------------------------------------------
40
--------------------------------------------------------------------
Four quarters ending December 31, 2003 $350,000,000
--------------------------------------------------------------------
Rolling four quarter periods thereafter $400,000,000
--------------------------------------------------------------------
SECTION 5.10. VISITATION RIGHTS. At any reasonable time and from time
to time, upon reasonable prior notice, it will permit the Agent or any of the
Lenders or any agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit the properties
of, the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with any
financial officers and, upon reasonable prior to notice to the Borrower and
subject to the right of a financial officer to be present during such
discussions, with their independent certified public accountants; PROVIDED, that
unless an Event of Default shall have occurred and is continuing, each of the
Agent and the Lenders may take such actions only once during any fiscal quarter
of the Borrower.
SECTION 5.11. MAINTENANCE OF PROPERTIES, ETC. It will maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its material properties that are material to the conduct of its business taken
as a whole in good working order and condition, ordinary wear and tear excepted;
PROVIDED, HOWEVER, that nothing in this Section 5.11 shall prevent the Borrower
or any such Subsidiary from discontinuing the operation or maintenance of any
property if such discontinuance is in the judgment of the Borrower desirable in
the conduct of its business or the business of such Subsidiary.
SECTION 5.12. MAINTENANCE OF INSURANCE. It will maintain, and cause
each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary
operates; PROVIDED, HOWEVER, that (i) the Borrower and its Subsidiaries may
self-insure to the same extent as other companies engaged in similar businesses
and owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates and to the extent consistent with prudent business
practice and (ii) insurance coverage against terrorist acts shall be required
only so long as such coverage is available on commercially reasonable terms.
SECTION 5.13. PAYMENT OF TAXES, ETC. It will pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims, in each case,
that, if unpaid, could reasonably be expected to result in a Material Adverse
Effect; PROVIDED, HOWEVER, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained so long as the failure to so pay or
discharge could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES. It will conduct, and
cause each of its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not
41
an Affiliate; PROVIDED, that the foregoing shall not apply to transactions
between the Borrower and its Subsidiaries or the Warburg Transactions.
SECTION 5.15. COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. At
any time during the Security Period, it will upon (x) the request of the Agent
following the occurrence and during the continuance of a Default or an Event of
Default, (y) the formation or acquisition of any new direct or indirect domestic
Material Subsidiaries by any Loan Party or (z) the acquisition of any material
property by any Loan Party, and such property, in the judgment of the Agent,
shall not already be subject to a perfected first priority security interest in
favor of the Collateral Trustee for the benefit of the Secured Parties, then the
Borrower shall, in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
domestic Material Subsidiary, within 10 days after such formation or
acquisition, cause each such Subsidiary, and cause each direct and
indirect domestic parent of such Subsidiary (if it has not already
done so), to duly execute and deliver to the Agent a guaranty or
guaranty supplement, in form and substance reasonably satisfactory to
the Agent, guaranteeing the other Loan Parties' obligations under the
Loan Documents,
(ii) within 15 days after such request, formation or
acquisition, duly execute and deliver, and cause each such Subsidiary
and each direct and indirect domestic parent of such Subsidiary (if it
has not already done so) to duly execute and deliver, to the
Collateral Trustee, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and
other security agreements, as specified by and in form and substance
reasonably satisfactory to the Agent, securing payment of all the
obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties, PROVIDED that no real property shall be
subjected to a security interest in favor of the Collateral Trustee
for the benefit of the Secured Parties,
(iii) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary or such parent to take,
whatever action (including, without limitation, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be reasonably necessary
or advisable in the opinion of the Agent to vest in the Collateral
Trustee (or in any representative of the Collateral Trustee designated
by them) valid and subsisting Liens on the properties purported to be
subject to the pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security
agreements delivered pursuant to this Section 5.15, enforceable
against all third parties in accordance with their terms,
(iv) within 60 days after such request, formation or
acquisition, deliver to the Agent, upon the request of the Agent in
its sole discretion, a signed copy of a favorable opinion, addressed
to the Agent and the other Secured Parties, of
42
counsel for the Loan Parties reasonably acceptable to the Agent as to
the matters contained in clauses (i), (ii) and (iii) above, as to such
guaranties, guaranty supplements, pledges, assignments, security
agreement supplements, intellectual property security agreement
supplements and security agreements being legal, valid and binding
obligations of each Loan Party party thereto enforceable in accordance
with their terms, as to the matters contained in clause (iii) above,
as to such recordings, filings, notices, endorsements and other
actions being sufficient to create valid perfected Liens on such
properties to the extent a Lien can be created by filing under the
Uniform Commercial Code, and as to such other matters as the Agent may
reasonably request,
(v) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Agent may deem necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the
Liens of, such guaranties, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and
security agreements.
SECTION 5.16. FURTHER ASSURANCES. (i) It will promptly upon request
by the Agent, or any Lender through the Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or
recordation thereof, and
(ii) It will promptly upon request by the Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, pledge
agreements, assignments, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest
extent permitted by applicable law and during the Security Period,
subject any Loan Party's or any of its domestic Subsidiaries'
properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) during
the Security Period, to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any
of the Liens intended to be created thereunder and (D) to assure,
convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party or any of its Subsidiaries is or
is to be a party, and cause each of its Subsidiaries to do so;
PROVIDED, that nothing contained herein shall require the Borrower or
any Subsidiary to grant a security interest in the assets or property
of any Excluded Subsidiary.
SECTION 5.17. DEBT. It will not create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Debt, except:
43
(i) in the case of the Borrower, unsecured Debt incurred in the
ordinary course of business for borrowed money, maturing within one year
from the date incurred, evidenced by commercial paper and aggregating at
any time not more than the then outstanding sum of (1) the unused
Commitments and (2) the unused portion of lines of credit from commercial
banks advised in writing and available to the Borrower, and
(ii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt outstanding on the Amendment No. 2 Effective Date
and any Debt extending the maturity of, or refunding or refinancing,
in whole or in part, any such Debt, PROVIDED that the terms of any
such extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection therewith, are
otherwise permitted by the Loan Documents, PROVIDED FURTHER that the
principal amount of such Debt shall not be increased above the sum of
(i) principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and (ii) any fees and expenses in
connection therewith, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing,
(C) Debt in an aggregate principal amount not to exceed
$200,000,000 at any time outstanding secured by real property,
(D) Debt issued in the capital markets, having a maturity
in excess of one year from the date incurred and in an aggregate
principal amount not to exceed the sum of $500,000,000 and any over
allotment thereof at any time outstanding;
(E) Debt of the Borrower to any Subsidiary of the Borrower
or of any Subsidiary to the Borrower or any other Subsidiary of the
Borrower,
(F) without duplication of clause (B) above, Debt, not to
exceed $300,000,000 at any time outstanding, incurred in connection
with the limited recourse sale of accounts receivable in connection
with the securitization thereof, which sale is non-recourse to the
extent customary in securitizations and consistent with past practice,
(G) Debt permitted to be secured by Liens in accordance
with Section 5.07(v), (vi) or (vii);
(H) Debt in respect of Hedge Agreements designed to hedge
against fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and in accordance with
prudent business practices,
(I) Debt in respect of trade letters of credit in an
aggregate amount not to exceed $25,000,000 at any time outstanding,
44
(J) Debt arising under the Electronic Wire and Cable
Product Purchase Agreement, as amended, and related agreements,
between the Borrower and the Xxxxxx Communication Division, a division
of Xxxxxx line,
(K) other Debt not to exceed in the aggregate $75,000,000
at any time outstanding, and
(L) other Debt not to exceed in the aggregate $50,000,000
consisting synthetic, off-balance sheet or tax retention leases.
SECTION 5.18. RESTRICTED PAYMENTS. It will not declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of capital stock
of the Borrower, or purchase, redeem or otherwise acquire for value (or permit
any of its Subsidiaries to do so) any shares of any class of capital stock of
the Borrower or any warrants, rights or options to acquire any such shares, now
or hereafter outstanding, except that, so long as no Default or Event of Default
shall have occurred and be continuing at the time of any action described below
or would result therefrom, the Borrower may (i) declare and make any dividend
payment or other distribution payable in common stock of the Borrower, (ii)
purchase, redeem or otherwise acquire shares of its common stock or warrants,
rights or options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock or options or
warrants convertible into common stock; (iii) declare or pay cash dividends to
the holders to its Series B convertible participating preferred stock and
warrants and purchase, redeem or otherwise acquire shares of its Series B
convertible participating preferred stock or warrants, rights or options to
acquire any such shares to the extent permitted by the terms of such Series B
convertible participating preferred stock or pay cash dividends in respect of
equity interests received in exchange for shares of Series B convertible
participating preferred stock, as described in clause (iv); and (iv) amend the
terms of the Series B convertible participating preferred stock or issue equity
interests of the Borrower, PROVIDED, HOWEVER, that such amended terms or the
terms of such equity interests shall not provide for (i) mandatory redemption
prior to the Maturity Date or (ii) the payment of cash dividends in an amount in
excess of the amount of cash dividends that may be paid in respect of the Series
B convertible participating preferred stock based on the terms of the Series B
convertible participating preferred stock as in effect on the date hereof.
SECTION 5.19. INVESTMENTS. It will not make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments (other than Investment permitted by clause
(iv) below) by the Borrower and its Subsidiaries in their Subsidiaries
outstanding on the Amendment No. 2 Effective Date and (x) additional
Investments in an aggregate amount not to exceed $50,000,000 at any
time outstanding in Subsidiaries that are not Subsidiary Guarantors
and (y) additional Investments in the Subsidiary Guarantors;
(ii) loans and advances to employees in the ordinary course
of the business of the Borrower and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $10,000,000
at any time outstanding;
45
(iii) Investments in Marketable Securities;
(iv) Investments consisting of intercompany Debt permitted
under Section 5.17;
(v) Investments received in connection with the bankruptcy
or reorganization of, or settlement of delinquent accounts and
disputes with customers and suppliers, in each case, in the ordinary
course of business;
(vi) Investments in joint ventures and other minority
interests in an amount not to exceed $75,000,000 at any time
outstanding;
(vii) warrants received from and minority equity interests
in, customers of and vendors to the Borrower and its Subsidiaries so
long as no cash is expended by the Borrower or any of its Subsidiaries
to purchase any of the foregoing;
(viii) minority interests received in connection with the sale
or disposition of any assets of the Borrower;
(ix) Investments existing on the Amendment No. 2 Effective
Date;
(x) Investments in the Borrower's Liquid Yield Option-TM-
Notes due 2021 (the "XXXXx") in an aggregate amount not to exceed
$100,000,000, PROVIDED that: (1) immediately before and after giving
effect thereto, no Default or Event of Default shall have occurred and
be continuing or would result therefrom; (2) no Loans are outstanding
immediately before or immediately after making such Investment, (3)
substantially contemporaneously with the making of such Investment,
the Total Commitment is reduced in accordance with Section 2.11 by an
amount equal to the cash amount of such Investment and (4) immediately
before and after giving effect thereto, the Borrower and its
Subsidiaries have cash and cash equivalents in an aggregate amount of
not less than $300,000,000; and
(xi) other Investments in an aggregate amount invested not
to exceed $75,000,000, PROVIDED that: (1) immediately before and after
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; (2) any company
or business acquired or invested in pursuant to this clause (x) shall
be in the same line of business of the Borrower or any of its
Subsidiaries or reasonably related thereto; and (3) immediately after
giving effect to the acquisition of a company or business pursuant to
this clause (x), the Borrower shall be in pro forma compliance with
Section 5.08, calculated based on the financial statements most
recently delivered to the Lenders pursuant to Section 5.02 and as
though such acquisition had occurred at the beginning of the
four-quarter period covered thereby, as evidenced by a certificate of
the Chief Financial Officer of the Borrower delivered to the Lenders
demonstrating such compliance.
46
SECTION 5.20. CHANGE IN NATURE OF BUSINESS. It will not make, or
permit any of its Subsidiaries to make, any material change in the nature of its
business taken as a whole as carried on at the date hereof (other than changes
that are reasonably related to such business).
SECTION 5.21. CONDITION SUBSEQUENT. It will use its reasonable best
efforts to provide to the Agent, within ten Business Days after the Closing
Date, the duly executed Irish share pledge and Gibraltar share pledge, in each
case as contemplated by the Security Agreement.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each an
"Event of Default"):
(a) any representation or warranty made or deemed made in or in
connection with the execution and delivery of this Agreement or the
Borrowings hereunder, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in
paragraph (b) above) due hereunder, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of
five Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 5.01, 5.02(e), 5.04,
5.06, 5.07, 5.08, 5.09, 5.10, 5.14, 5.17, 5.18, 5.19 or 5.20;
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those
specified in (b), (c) or (d) above or (f) below) or in any other Loan
Document and such default shall continue for a period of 30 days after
notice thereof from the Agent or any Lender to the Borrower;
(f) default shall be made in the due observance or performance of
covenants, conditions or agreements contained in Section 5.02 (a) through
(d) and such default shall continue unremedied for a period of 15 days
after notice thereof from the Agent or any Lender to the Borrower;
(g) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or
47
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Borrower, or for any substantial
part of its property or ordering the winding up or liquidation of its
affairs, and such decree or order shall remain unstayed and in effect for a
period of 20 consecutive days;
(h) the Borrower shall commence a voluntary case under any applicable
bankruptcy or other similar law now or hereafter in effect, or consent to
the entry of an order for relief in an involuntary case under any such law;
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Borrower, or for any substantial part of its property or
make any general assignment for the benefit of creditors; or the Borrower
shall admit in writing its inability to pay its debts generally as they
become due, or corporate action shall be taken by the Borrower in
furtherance of any of the aforesaid purposes;
(i) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof;
(j) Judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Borrower or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 45 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; PROVIDED, HOWEVER, that any such judgment or order shall
not be an Event of Default under this clause (j) if and for so long as and
to the extent that (i) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the
insurers covering payment thereof and (ii) such insurers, which shall be
rated at least "B+" by A.M. Best Company, have been notified of, and
coverage has not been denied for, the amount of such judgment or order; and
(k) The Borrower or any of its ERISA Affiliates shall incur, or shall
be reasonably likely to incur liability in excess of $100,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
48
(l) (i) Any Person or group of Persons (within the meaning of Section
13 or Section 14 of the Securities and Exchange Act of 1934) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under such Act), directly or indirectly,
of Voting Shares of the Borrower (or other securities convertible into such
Voting Shares) representing 30% or more of the combined voting power of all
Voting Shares of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of
the Borrower shall cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of the
Borrower (except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by a majority
of the remaining members of the board of directors of the Borrower or (y)
nominated for election by a majority of the remaining members of the board
of directors of the Borrower and thereafter elected as directors by the
shareholders of the Borrower); or
(m) any provision of any guarantee after delivery thereof pursuant to
Section 5.15 shall for any reason cease to be valid and binding on or
enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or
(n) any Collateral Document or financing statement after delivery
thereof pursuant to Section 5.15 shall for any reason (other than pursuant
to the terms thereof) cease to create a valid and perfected first priority
lien on and security interest in the Collateral purported to be covered
thereby;
then, and in every such event (other than an event described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of such event, the
Agent, at the request of the Required Lenders, shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding; and, in any event with respect to the Borrower
described in paragraph (f) or (g) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding.
49
ARTICLE VII
THE AGENT
In order to expedite the transactions contemplated by this Agreement,
Citibank, N.A. is hereby appointed to act as Agent on behalf of the Lenders.
Each of the Lenders hereby irrevocably authorizes the Agent to take such actions
on behalf of such Lender and to exercise such powers as are specifically
delegated to the Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Agent is hereby
expressly authorized by the Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and all other amounts due to the Lenders hereunder,
and promptly to distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrower of
any Event of Default specified in this Agreement of which the Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrower of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agent shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Agent may deem and treat the
Lender which makes any Loan as the holder of the indebtedness resulting
therefrom for all purposes hereof until it shall have received notice from such
Lender, given as provided herein, of the transfer thereof. The Agent shall in
all cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. The Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower of any of their respective obligations hereunder or
in connection herewith. The Agent may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Agent shall be under no duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
50
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent acceptable to the Borrower. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000 or an Affiliate
of any such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from its duties and obligations hereunder. After the
Agent's resignation hereunder, the provisions of this Article and Section 8.05
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 Agent.
With respect to the Loans made by it hereunder, the Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not the Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in the
amount of its pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Lenders by the Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, which shall not have been reimbursed by the Borrower, and (ii) to
indemnify and hold harmless the Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in
its capacity as the Agent or any of them in any way relating to or arising out
of this Agreement or any action taken or omitted by it or any of them under this
Agreement to the extent the same shall not have been reimbursed by the Borrower;
PROVIDED that no Lender shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any related agreement or any document
furnished hereunder or thereunder.
51
Each Lender hereby acknowledges that none of the Lead Arranger, the
Co-Syndication Agents, the Co-Arrangers or any agent (other than the Agent)
designated on the signature pages hereof has any liability hereunder other than
in its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at
Avaya Inc., 000 Xxxxx Xxxx Xxxx,
Xxxxxxx Xxxxx, XX 00000, Attention: Vice President and Treasurer (Facsimile
No. 908-953-2657) with a copy to: Vice President, Law - Corporate
(Facsimile No. 908-953-4912);
(b) if to the Agent, to it at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx
00000, Attention: Bank Loan Syndications Department, (Facsimile No.
302-849-6120); with a copy thereof to it at 000 Xxxxxxxxx Xxxxxx, XX 00000,
Attention: Xxxxxxx Xxxxxx, Global Media and Telecommunications Department,
(Fascimile No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, graphic scanning or other telegraphic communications equipment of the
sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 8.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 8.01.
SECTION 8.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitments have not been terminated.
SECTION 8.03. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of the Required Lenders (as defined in the
Existing Credit Agreement), and thereafter shall be binding
52
upon and inure to the benefit of the Borrower, the Agent and each Lender and
their respective successors and assigns.
SECTION 8.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, the Agent or the Lenders that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); PROVIDED,
HOWEVER, that (i) the Borrower must give its prior written consent to such
assignment (such consent not to be unreasonably withheld) except for an
assignment to an Affiliate of a Lender provided that, in such case, the Lender
give notice of such assignment to the Borrower and, in each case, the Lender
give notice of such assignment to the Agent, (ii) the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Agent) shall be at least $10,000,000 or increments of $1,000,000 in
excess thereof (or the remaining balance of its Commitment) and the amount of
the Commitment of such Lender remaining after such assignment shall not be less
than $10,000,000 or shall be zero, (iii) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and Acceptance, and a
processing and recordation fee of $3,500 and (iv) the assignee, if it shall not
be a Lender, shall deliver to the Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 8.04, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.13, 2.15, 2.19 and 8.05, as well as to any Fees accrued
for its account hereunder and not yet paid)) and (C) Schedule 2.01 shall be
deemed amended to give effect to such assignment. Notwithstanding the foregoing,
any Lender assigning its rights and obligations under this Agreement may retain
any Competitive Loans made by it outstanding at such time, and in such case
shall retain its rights hereunder in respect of any Loans so retained until such
Loans have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity,
53
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto or the financial condition of
the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 5.02 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v)
such assignee will independently and without reliance upon the Agent, such
assigning Lender 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; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in the City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and the principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive in the absence of manifest error and the Borrower, the Agent
and the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
each Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower to
such assignment, the Agent shall (i) accept such Assignment and Acceptance and
(ii) record the information contained therein in the Register.
(f) Each Lender may, without the consent of the Borrower or the Agent,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); PROVIDED, HOWEVER, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) each participating bank or other entity
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.13, 2.15 and 2.19 to the same extent as if it was the selling Lender,
except that all claims and petitions for payment and payments made pursuant to
such Sections shall be made through such selling Lender, and (iv) the Borrower,
the Agent and the other Lenders shall continue to deal solely and directly with
such selling Lender in connection with such Lender's rights and obligations
under this Agreement, and such Lender shall retain the sole right (and
participating banks or other entities shall have no
54
right) to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, or extending any scheduled principal payment date or date fixed
for the payment of interest on the Loans).
Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; PROVIDED that, prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall execute
an agreement whereby such assignee or participant shall agree to be bound by the
confidentiality restrictions used by the Agent in connection with the
syndication of the Commitments.
(g) and shall agree (subject to customary exceptions) to preserve the
confidentiality of any such confidential information relating to the Borrower.
(h) Except in accordance with Section 8.13, the Borrower shall not
assign or delegate any of its respective rights and duties hereunder without the
prior written consent of all Lenders and any attempted assignment without such
consent shall be void.
(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; PROVIDED that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes in the form of Exhibit A-5 or B hereto, as applicable, evidencing
the Loans made to the Borrower by the assigning Lender hereunder.
SECTION 8.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agent in connection with
entering into this Agreement or in connection with any amendments, modifications
or waivers of the provisions hereof, or incurred by the Agent or any Lender in
connection with the enforcement or protection of their rights in connection with
this Agreement or in connection with the Loans made hereunder, including the
fees and disbursements of counsel for the Agent or, in the case of enforcement
or protection, Lenders.
(b) The Borrower agrees to indemnify the Agent, the Lenders,
Affiliates, and their respective directors, officers, employees and agents (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the transactions contemplated thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
55
party thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. The Borrower also agrees not to assert any claim
for special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to this Agreement, any other Loan Document, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(c) The provisions of this Section 8.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Agent or any Lender. All amounts due under this Section 8.05 shall be payable on
written demand therefor.
SECTION 8.06. RIGHT OF SETOFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request specified
by Section 6.01 to authorize the Agent to declare the Loans due and payable
pursuant to the provisions of Section 6.01, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement, whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set off and application, PROVIDED that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of setoff) that
such Lender and its Affiliates may have.
SECTION 8.07. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.08. WAIVERS; AMENDMENT. (a) No failure or delay of the
Agent or any Lender in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
56
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; PROVIDED, HOWEVER, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) increase the Commitment or
decrease the Facility Fee of any Lender without the prior written consent of
such Lender, or (iii) amend or modify the provisions of Section 2.16 or Section
8.04(h), the provisions of this Section or the definition of the "Required
Lenders," without the prior written consent of each Lender, or (iv) release all
or substantially all of the Collateral without the prior written consent of each
Lender, PROVIDED that so long as no Default or Event of Default has occurred and
is continuing, (x) no consent of any Lender or the Agent shall be required for
the release of any Collateral in connection with a sale or other disposition of
assets if any of the proceeds thereof are used to reduce the Total Commitment in
accordance with Section 2.11(e) or in connection with a financing to the extent
the proceeds thereof are used to reduce the Total Commitment in accordance with
Section 2.11(f), (y) no consent of any Lender or the Agent shall be required for
the release of any Collateral with the sale or other disposition of the assets
described on Schedule 2.11 hereto and (z) in any fiscal year of the Borrower,
Collateral having a fair market value not in excess of $25,000,000 shall be
released upon sale or other disposition with only the consent of the Agent;
PROVIDED FURTHER, HOWEVER, that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Agent hereunder without the prior
written consent of the Agent. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section and any consent by any
Lender pursuant to this Section shall bind any assignee of its rights and
interests hereunder.
SECTION 8.09. ENTIRE AGREEMENT. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any previous agreement among the parties with respect to the subject
matter hereof is superseded by this Agreement and the Fee Letter. Nothing in
this Agreement or the Fee Letter expressed or implied, is intended to confer
upon any party other than the parties hereto any rights, remedies, obligations
or liabilities under or by reason of this Agreement or the Fee Letter.
SECTION 8.10. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 8.11. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 8.03.
57
SECTION 8.12. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
58
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
AVAYA, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
CITIBANK, N.A., individually and as Agent,
By Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
BANK ONE, NA (Main Office Chicago)
By
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By
------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
59
COMMERZBANK AG
By /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
THE BANK OF TOKYO -
MITSUBISHI LTD., NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON
By /s/ Xxxxxxx X'Xxxx
------------------------------------
Name: Xxxxxxx X'Xxxx
Title: Director
By /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
Title: Associate
HSBC BANK USA
By /s/ Xxxxx xx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx xx Xxxxxxxxxxxx
Title: Senior Banker
60
THE NORTHERN TRUST COMPANY
By /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Joint General Manager
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By
------------------------------------
Name:
Title:
61
SCHEDULE I
APPLICABLE LENDING OFFICES
-------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
-------------------------------------------------------------------------------------------------------------------
The Bank of New York One Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx Attn: Xxx Xxxxxx
Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
T: 000 000-0000/7938 T: 000 000-0000/7938
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
Bank One, NA 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxx Xxxxx Attn: Xxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi Ltd., 1251 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx Branch 00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xx Attn: Xxxxxxx Xx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Two Penns Way Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 Xxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
T: 302 89406013 T: 302 89406013
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
Commerzbank, AG 2 World Financial Center 2 World Financial Center
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxx
T: 212 266-7348/7749 T: 212 266-7348/7749
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston 00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG New York Branch Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
HSBC Bank USA 000 Xxxxxxxx, 0xx Xxxxx 000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
T: 212 658-5572 T: 212 658-5572
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
The Northern Trust Company 00 X. XxXxxxx Xxxxxx 00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Honda Attn: Xxxxx Honda
T: 000 000-0000 T: 000 000-0000
F: 312 630-1566 F: 312 630-1566
-------------------------------------------------------------------------------------------------------------------
Sumitomo Mitsui Banking Corporation 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx-Xxxxxx Attn: Xxxxxxxx Xxxx-Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
-------------------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank 0000 Xxxxxx of the Americas 1211 Avenue of the Americas
Girozentrale, New York Branch Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Pascal Kabemba Attn: Pascal Kabemba
T: 000 000-0000 T: 000 000-0000
F: 212 852-6300 F: 212 852-6300
-------------------------------------------------------------------------------------------------------------------
2
SCHEDULE 2.01
-------------------------------------------------------------------------------
NAME AND ADDRESS OF LENDER COMMITMENT
-------------------------------------------------------------------------------
Citibank N.A. $ 132,000,000
JPMorgan Chase Bank 61,875,000
Deutsche Bank AG New York Branch 61,875,000
Bank One, NA 57,750,000
Commerzbank AG 57,750,000
The Bank of New York 41,250,000
Credit Suisse First Boston 33,000,000
Bank of Tokyo - Mitsubishi Ltd. 24,750,000
HSBC Bank USA 24,750,000
Sumitomo Mitsui Banking Corporation 24,750,000
Westdeutsche Landesbank 24,750,000
The Northern Trust Company 16,500,000
-------------------------------------------------------------------------------
TOTAL $ 561,000,000
-------------------------------------------------------------------------------
SCHEDULE 2.11
The Borrower's Connectivity Solutions business and the aircraft pledged under
the aircraft security agreement described in Section 4.02(e).
2
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
Citibank, N.A., as Agent for
the Lenders referred to below,
-----------------
-----------------
Attention: [Date]
Ladies and Gentlemen:
The undersigned,
Avaya Inc., a Delaware corporation (the "Borrower"),
refers to the Amended and Restated Five Year
Competitive Advance and Revolving
Credit Facility Agreement dated as of September __, 2002 (as it may hereafter be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, the Lenders named therein, the agents named
therein and Citibank, N.A., as Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section
2.03(a) of the Credit Agreement that it requests a Competitive Borrowing under
the Credit Agreement, and in that connection sets forth below the terms on which
such Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing (which is a Business Day) __________
(B) Principal Amount of Competitive Borrowing * __________
(C) Interest rate basis ** __________
(C) Interest Payment Date(s)** __________
(E) Interest Period and the last day thereof *** __________
----------
*Not less than $10,000,000 (and in integral multiples of $1,000,000) or
greater than the Total Commitment then available.
**Eurodollar Loan or Fixed Rate Loan.
**Eurodollar Loan or Fixed Rate Loan.
***Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the Credit Agreement have been satisfied.
Very truly yours,
AVAYA INC.
By
------------------------------
Name:
Title: [Responsible Officer]
2
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
New York, N.Y.
Attention: [Date]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Five Year
Competitive
Advance and Revolving Credit Facility Agreement dated as of September __, 2002
(as it may hereafter be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among
Avaya Inc., the Lenders named therein, the
agents named therein and Citibank, N.A., as Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. The Borrower made a Competitive Bid Request on ,
20 , pursuant to Section 2.03(a) of the Credit Agreement, and in that
connection you are invited to submit a Competitive Bid by [Date]/[Time].* Your
Competitive Bid must comply with Section 2.03(b) of the Credit Agreement and the
terms set forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing _____________________
(B) Principal amount of Competitive Borrowing _________________
(C) Interest rate basis _____________________
(D) Interest Period and the last day thereof _____________________
Very truly yours,
CITIBANK, N.A., as Agent,
By
-------------------------------
Name:
Title: [Responsible Officer]
----------
* The Competitive Bid must be received by the Agent (i) in the case of
Eurodollar Loans, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (ii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the Business Day of a proposed Competitive Borrowing.
EXHIBIT A-3
FORM OF COMPETITIVE BID
Citibank, N.A., as Agent for
the Lenders referred to below,
-----------------
-----------------
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Amended and Restated
Five Year
Competitive Advance and Revolving Credit Facility Agreement dated as
of September __, 2002 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among
Avaya Inc., the
Lenders named therein, the agents named therein and Citibank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 2.03(b) of the Credit Agreement, in
response to the Competitive Bid Request made by the Borrower on , 20 , and in
that connection sets forth below the terms on which such Competitive Bid is
made:
(A) Principal Amount * __________________________
(B) Competitive Bid Rate ** __________________________
(C) Interest Period and last day thereof __________________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.03(d)
of the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
By
------------------------------
Name:
Title:
----------
* Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Agent.
** i.e., LIBO Rate + or - %, in the case of Eurodollar Loans or %, in the
case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
Citibank, N.A., as Agent for
the Lenders referred to below,
-----------------
-----------------
Attention:
Ladies and Gentlemen:
The undersigned,
Avaya Inc. (the "Borrower"), refers to the Amended
and Restated Five Year
Competitive Advance and Revolving Credit Facility
Agreement dated as of September __, 2002 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders named therein, the agents named therein and Citibank,
N.A., as Agent for the Lenders.
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
___________ and in accordance with Section 2.03(d) of the Credit Agreement, we
hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/margin Lender e:
---------------- ----------------- ---------
$ [%]/[+/-. %]
$
The $ should be deposited in the Citibank, N.A. account number
[ ] on [date].
Very truly yours,
AVAYA INC.
By
----------------------
Name:
Title:
EXHIBIT A-5
FORM OF COMPETITIVE BID NOTE
$ [_____________] New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned,
Avaya Inc., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of [Name of
Lender] (the "Lender"), at the office of Citibank, N.A. (the "Agent") at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on ___________, 200_, pursuant to
the Amended and Restated Five Year
Competitive Advance and Revolving Credit
Facility Agreement dated as of September __, 2002 (the "Credit Agreement"),
among the Borrower, the Lenders named therein, the agents named therein and the
Agent) the principal amount for a Competitive Loan in the amount of [Loan amount
in words] ($[ ]), in lawful money of the United States of America, in
immediately available funds, and to pay interest on the principal amount hereof
in like funds from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed) payable on ____________.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
The Loans evidenced hereby are Competitive Loans referred to in the
Credit Agreement, which, among other things, contains provisions for the
acceleration of the maturity thereof upon the happening of certain events and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
AVAYA INC.
By
------------------------------
Name:
Title:
EXHIBIT A-6
FORM OF COMMITTED BORROWING REQUEST
Citibank, N.A., as Agent for
the Lenders referred to below,
-----------------
-----------------
Attention: [Date]
Ladies and Gentlemen:
The undersigned, Avaya Inc. (the "Borrower"), refers to the Amended
and Restated Five Year
Competitive Advance and Revolving Credit Facility
Agreement dated as of September __, 2002 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders named therein, the agents named therein and Citibank,
N.A., as Agent. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
Borrower hereby gives you notice pursuant to Section 2.04 of the Credit
Agreement that it requests a Committed Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such Committed Borrowing
is requested to be made:
(A) Date of Committed Borrowing (which is a Business Day) __________
(B) Principal Amount of Committed Borrowing * _______________
(C) Interest rate basis ** _______________
(D) Interest Period and the last day thereof *** _______________
----------
*Not less than $10,000,000 (and in integral multiples of $1,000,000) or
greater than the Total Commitment then available.
**Eurodollar Loan or ABR Loan.
***Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
2
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the Credit Agreement have been satisfied.
Very truly yours,
AVAYA INC.
By
-------------------------------
Name:
Title: [Responsible Officer]
3
EXHIBIT B
FORM OF STANDBY NOTE
$ [Amount of Commitment] New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned, Avaya Inc., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of [Name of
Lender] (the "Lender"), at the office of Citibank, N.A. (the "Agent") at
[Address of Citibank, N.A.], on the Maturity Date (as defined in the Amended and
Restated Five Year
Competitive Advance and Revolving Credit Facility Agreement
dated as of September __, 2002 (the "Credit Agreement"), among the Borrower, the
Lenders named therein, the agents named therein and the Agent) the lesser of the
principal sum of [amount of Commitment in words] ($[ ]) and the aggregate unpaid
principal amount of all Loans (as defined in the Credit Agreement) made to the
Borrower by the Lender pursuant to the Credit Agreement, in lawful money of the
United States of America, in immediately available funds, and to pay interest on
the principal amount hereof from time to time outstanding, in like funds, at
said office, at the rate or rates per annum, from the dates and payable on the
dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates and
maturity dates thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; PROVIDED, HOWEVER, that the failure of the holder to
make such a notation or any error in such a notation shall not affect the
obligations of the Borrower under this Note.
The Loans evidenced hereby are Committed Loans referred to in the
Credit Agreement, which, among other things, contains provisions for the
acceleration of the maturity thereof upon the happening of certain events, for
optional and mandatory prepayment of the principal thereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS NOTE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
AVAYA INC.
By
-------------------------------
Name:
Title:
2
LOANS AND PAYMENTS
------------------------------------------------------------------------------------------------------------------------
Date Amount Maturity Principal Payments Interest Unpaid Name of
and Type Date Principal Person
of Loan Balance Making
of Note Notation
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
3
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Five Year Competitive
Advance and Revolving Credit Facility Agreement dated as of September __, 2002
(as the same may be modified, amended, extended or restated from time to time,
the "Credit Agreement"), among Avaya Inc. (the "Borrower"), the lenders party
thereto (the "Lenders"), the agents party thereto and Citibank, N.A., as agent
for the Lenders (in such capacity, the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and the Competitive Loans (if
noted on the attached Schedule) and Committed Loans owing to the Assignor which
are outstanding on the Effective Date, together with unpaid interest accrued on
the assigned Loans to the Effective Date. Each of the Assignor and the Assignee
hereby makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 8.04(c) of the Credit Agreement, a copy of which
has been received by each such party. From and after the Effective Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights (except as set forth in Section 8.04(b) of the
Credit Agreement) and be released from its obligations under the Credit
Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.19(f) of the Credit
Agreement, duly completed and executed by such Assignee, (ii) if the Assignee is
not already a Lender under the Credit Agreement, an Administrative Questionnaire
and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
----------------------------------------------------------------------------------------------------------
Percentage Assigned of Facility
and Commitment thereunder (set
forth, to at least 8 decimals, as
Principal Amount Assigned (and a percentage of the Facility and
identifying information as to the aggregate Commitments of all
individual Competitive the Lenders thereunder)
Loans)
----------------------------------------------------------------------------------------------------------
Commitment Assigned: $ %
----------------------------------------------------------------------------------------------------------
Committed Loans:
----------------------------------------------------------------------------------------------------------
Competitive Loans, if any:
----------------------------------------------------------------------------------------------------------
The terms set forth above and on the
reverse side hereof are hereby agreed to: Accepted: as of _____________,
_________________________, as Assignor CITIBANK, N.A., as agent
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
__________________________, as Assignee [AVAYA INC.]
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
2
EXHIBIT D
FORM OF
OPINION OF COUNSEL FOR AVAYA INC.
