$625,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
among
ARROW ELECTRONICS, INC.,
THE SUBSIDIARY BORROWERS,
The Several Banks
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A., as Syndication Agent
FLEET NATIONAL BANK, as Documentation Agent
and
THE CHASE MANHATTAN BANK, as Administrative Agent
XX XXXXXX, a division of Chase Securities Inc., as Arranger
Dated as of February 22, 200
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 19
1.3 Accounting Determinations 19
SECTION 2. THE COMMITTED RATE LOANS 20
2.1 Committed Rate Loans 20
2.2 Procedure for Committed Rate Loan Borrowing 20
2.3 Repayment of Committed Rate Loans; Evidence of Debt 21
2.4 Termination or Reduction of Commitments 21
2.5 Optional Prepayments 21
2.6 Conversion and Continuation Options 22
2.7 Minimum Amounts of Tranches 22
2.8 Interest Rates and Payment Dates for Committed Rate Loans 22
2.9 Inability to Determine Interest Rate 23
2.10 Commitment Increases 23
2.11 Refunding of Committed Rate Loans Denominated in
available Foreign Currencies 23
2.12 Certain Borrowings of Committed Rate Loans and
Refunding of Loans 23
SECTION 3. THE COMPETITIVE ADVANCE LOANS 28
3.1 Competitive Advance Loans 28
3.2 Procedure for Competitive Advance Loan Borrowing 28
3.3 Repayment of Competitive Advance Loans; Evidence of Debt 29
3.4 Prepayments 30
SECTION 4. THE SWING LINE LOANS 30
4.1 Swing Line Loans 30
4.2 Procedure for Swing Line Borrowing 30
4.3 Repayment of Swing Line Loans; Evidence of Debt 31
4.4 Allocating Swing Line Loans; Swing Line Loan Participations 31
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS 33
5.1 Facility Fee; Utilization Fee; Other Fees; Other Payments 33
5.2 Computation of Interest and Fees 33
5.3 Pro Rata Treatment and Payments 34
5.4 [Reserved] 35
5.5 Requirements of Law 35
5.6 Taxes 37
5.7 Company's Options upon Claims for Increased Costs and Taxes 39
5.8 Break Funding Payments 40
5.9 Determinations 41
5.10 Change of Lending Office 41
5.11 Company Controls on Exposure; Calculation of
Exposure; Prepayment if Exposure exceeds Commitments 41
5.12 Extensions of Termination Date for Commitments 42
SECTION 6. REPRESENTATIONS AND WARRANTIES 43
6.1 Financial Condition 43
6.2 No Change 44
6.3 Corporate Existence; Compliance with Law 44
6.4 Corporate Power; Authorization; Enforceable Obligations 44
6.5 No Legal Bar 45
6.6 No Material Litigation 45
6.7 No Default 45
6.8 Ownership of Property; Liens 45
6.9 Intellectual Property 45
6.10 [Reserved] 45
6.11 Taxes 45
6.12 Federal Regulations 46
6.13 ERISA 46
6.14 Investment Company Act; Other Regulations 47
6.15 Subsidiaries 47
6.16 Accuracy and Completeness of Information 47
6.17 Purpose of Loans; Commitments 47
6.18 Environmental Matters 48
SECTION 7. CONDITIONS PRECEDENT 49
7.1 Conditions to Closing Date 49
7.2 Conditions to Each Loan 50
SECTION 8. AFFIRMATIVE COVENANTS 51
8.1 Financial Statements 51
8.2 Certificates; Other Information 53
8.3 Payment of Obligations 53
8.4 Conduct of Business and Maintenance of Existence 54
8.5 Maintenance of Property; Insurance 54
8.6 Inspection of Property; Books and Records; Discussions 54
8.7 Notices 54
8.8 Environmental Laws 55
8.9 Additional Subsidiary Guarantees 55
SECTION 9. NEGATIVE COVENANTS 56
9.1 Financial Condition Covenants 56
9.2 Limitation on Indebtedness of Domestic Subsidiaries 56
9.3 Limitation on Liens 56
9.4 Limitation on Fundamental Changes 58
SECTION 10. EVENTS OF DEFAULT 58
SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTS 60
11.1 Appointment 60
11.2 Delegation of Duties 61
11.3 Exculpatory Provisions 61
11.4 Reliance by Administrative Agent 61
11.5 Notice of Default 61
11.6 Non-Reliance on Administrative Agent and Other Banks 62
11.7 Indemnification 62
11.8 Administrative Agent in Its Individual Capacity 63
11.9 Successor Administrative Agent 63
11.10 The Arranger, Syndication Agent and Documentation Agent 63
SECTION 12. MISCELLANEOUS 63
12.1 Amendments and Waivers 63
12.2 Notices 65
12.3 No Waiver; Cumulative Remedies 66
12.4 Survival of Representations and Warranties 66
12.5 Payment of Expenses and Taxes 67
12.6 Successors and Assigns; Participations and Assignments 67
12.7 Adjustments; Set-off 70
12.8 Power of Attorney 71
12.9 Judgment 71
12.10 Counterparts 71
12.11 Severability 72
12.12 Integration 72
12.13 GOVERNING LAW 72
12.14 Submission To Jurisdiction; Waivers 72
12.15 Acknowledgments 73
12.16 WAIVERS OF JURY TRIAL 73
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT, dated as of February 22,
2001, among:
(i) ARROW ELECTRONICS, INC., a New York corporation (the "Company");
(ii) the SUBSIDIARY BORROWERS (as hereinafter defined);
(iii) the several banks and other financial institutions from time to
time parties to this Agreement (the "Banks");
(iv) BANK OF AMERICA, N.A., as syndication agent for the Banks
hereunder (in such capacity, the "Syndication Agent");
(v) FLEET NATIONAL BANK, as documentation agent for the Banks
hereunder (in such capacity, the "Documentation Agent"); and
(vi) THE CHASE MANHATTAN BANK, as administrative agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Banks to make available a 364-day
revolving credit facility that amends and restates the 364-Day Credit
Agreement, dated as of March 24, 2000, among the Company, certain of its
subsidiaries, certain financial institutions, Chase Securities Inc., as
arranger, and The Chase Manhattan Bank, as administrative agent (as in effect
on the date hereof, the "Existing Credit Agreement"); and
WHEREAS, the Banks are willing to make such credit facility available
upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree that, effective as of the
Closing Date (as defined below), the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect at
its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by Chase in connection with extensions
of credit to debtors); "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by
it; and "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 on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective as of the opening
of business on the effective day of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans denominated in Dollars the rate of interest applicable to
which is based upon the ABR.
"Acceleration Date": any date on which the Commitments shall have been
terminated and/or the Loans shall have been declared immediately due and
payable pursuant to Section 10.
"Adjusted Consolidated EBITDA": for any fiscal period, (a) the Consolidated
Net Income of the Company and its Subsidiaries for such period, plus (b) to
the extent deducted from earnings in determining Consolidated Net Income for
such period, the sum, in each case for such period, of income taxes, interest
expense, depreciation expense, amortization expense, including amortization
of any goodwill or other intangibles, minus (c) to the extent included in
determining Consolidated Net Income for such period, non-cash equity earnings
of unconsolidated Affiliates, plus (d) to the extent excluded in determining
Consolidated Net Income for such period, cash distributions received by the
Company from unconsolidated Affiliates, all as determined on a consolidated
basis in accordance with GAAP.
"Administrative Schedule": Schedule IV to this Agreement, which contains
interest rate definitions and administrative information in respect of each
Currency and each Type of Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affected Bank": any Bank affected by the events described in subsection
5.4, 5.5 or 5.6, as the case may be, but only for the period during which
such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or (b) any Person who is a
director or officer of the Company or any of its Subsidiaries. For purposes
of this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Syndication Agent and the
Documentation Agent.
"Aggregate Commitments": the aggregate amount of the commitments hereunder
and of the Commitments under (and as defined in) the Three Year Credit
Agreement.
"Aggregate Committed Outstandings": the aggregate outstanding principal
amount of the Committed Rate Loans and Swing Line Loans hereunder plus the
aggregate outstanding principal or face amount of the Committed Rate Loans,
Swing Line Loans, Letters of Credit and Local Currency Loans under (and as
defined in) the Three Year Credit Agreement.
"Agreement": this Amended and Restated 364-Day Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Allocable Share": as to any Assenting Bank at any time, a fraction, the
numerator of which shall be the Commitment of such Assenting Bank then in
effect and the denominator of which shall be the aggregate of the Commitments
of all Assenting Banks then in effect.
"Applicable Margin": for each Type of Loan, (i) for the period from and
including the Closing Date to and including September 30, 2001, 75.00 basis
points and (ii) on any date thereafter, the rate per annum determined based
upon the Rating in effect on such date by both S&P and Xxxxx'x set forth
under the relevant column heading below opposite such Rating:
Rating
(S&P/Xxxxx'x) Applicable Margin (in basis points) for Eurocurrency Loans
Greater than or equal to A-/A3 53.50
Greater than or equal to BBB+/Baa1 65.00
Greater than or equal to BBB/Baa2 75.00
Greater than or equal to BBB-/Baa3 85.00
Less than BBB-/Baa3 105.00
; provided that, in the event that the Ratings of S&P and Xxxxx'x do not
coincide, the Applicable Margin set forth above opposite the lower of such
Ratings will apply, or if there is no Rating in effect, the Applicable Margin
will be based on the rating of less than BBB-/Baa3.
"Arranger": XX Xxxxxx, a division of Chase Securities Inc., as sole advisor,
lead arranger and bookrunner.
"Assenting Bank": as defined in subsection 5.7(a).
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": each Assignment and Acceptance, substantially
in the form of Exhibit I, executed and delivered pursuant to subsection
12.6(c).
"Available Foreign Currencies": (i) with respect to Committed Rate Loans and
Swing Line Loans, euro and any other currency agreed upon by the Company, the
Administrative Agent and all of the Banks, and (ii) with respect to
Competitive Advance Loans, any currency agreed upon by the Borrower of such
Competitive Advance Loan and the Bank that makes such Competitive Advance
Loan.
"Banks": as defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System or any
successor.
"Borrowers": the collective reference to the Company and the Subsidiary
Borrowers.
"Borrowing Date": any Business Day on which the Company or any Subsidiary
Borrower requests the Banks to make Loans hereunder.
"Borrowing Percentage": (a) with respect to Committed Rate Loans denominated
in Dollars to be made by any Bank at any time, the ratio (expressed as a
percentage) of the amount of such Bank's Undrawn Commitment at such time to
the aggregate amount of the Undrawn Commitments of all the Banks at such
time; provided, that in determining any Bank's Undrawn Commitment for purpose
of determining such Bank's Borrowing Percentage of any such Committed Rate
Loans whose proceeds will be simultaneously applied to repay Swing Line
Loans, such Bank's Commitment Percentage of the amount of such Swing Line
Loans will not be considered Committed Exposure of such Bank (such Borrowing
Percentage of each Bank at any time to be calculated by the Administrative
Agent on the basis of its most recent calculations of the Undrawn Commitments
of the Banks) and (b) with respect to Committed Rate Loans denominated in any
Available Foreign Currency to be made by any Bank at any time, a percentage
equal to such Bank's Foreign Currency Commitment Percentage in the Currency
of such Committed Rate Loans.
"Business": as defined in subsection 6.18(b).
"Business Day": (a) when such term is used in respect of any amount
denominated or to be denominated in (i) any Available Foreign Currency, a
London Banking Day which is also a day other than a Saturday or Sunday on
which banks are open for general banking business in (x) the city which is
the principal financial center of the country of issuance of such Available
Foreign Currency, (y) in the case of euro only, Frankfurt am Main, Germany
(or such other principal financial center as the Administrative Agent may
from time to time nominate for this purpose) and (z) New York City and (ii)
Dollars, a London Banking Day which is also a day other than a Saturday or
Sunday on which banks are open for general banking business in New York City
and (b) when such term is used for the purpose of determining the date on
which the Eurocurrency Rate is determined under this Agreement for any Loan
denominated in euro for any Interest Period therefor and for purposes of
determining the first and last day of any Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the net
annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of Chase in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board) in respect
of new non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other than a corporation) and
any and all warrants, options or rights to purchase any of the foregoing.
"Change in Control": one or more of the following events:
(a) less than a majority of the members of the Company's board of
directors shall be persons who either (i) were serving as directors on the
Closing Date or (ii) were nominated as directors and approved by the vote of
the majority of the directors who are directors referred to in clause (i)
above or this clause (ii); or
(b) the stockholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company; or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the Capital Stock of the Company as
of the Closing Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become
the direct or indirect beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time) of
securities of the Company representing 40% or more of the combined voting
power of the outstanding voting securities for the election of directors or
shall have the right to elect a majority of the board of directors of the
Company.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth in
subsection 7.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitment": as to any Bank, the obligation of such Bank to make and/or
acquire participating interests in Committed Rate Loans or Swing Line Loans
hereunder in an aggregate Dollar Equivalent Amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's name on
Schedule I under the caption "Dollar Commitment Amount", as such amount may
be changed from time to time in accordance with the provisions of this
Agreement.
"Commitment Increase Notice": as defined in subsection 2.10(a).
"Commitment Increase Supplement": as defined in subsection 2.10(c).
"Commitment Percentage": as to any Bank at any time, the percentage which
such Bank's Commitment then constitutes of the aggregate Commitments (or, at
any time after the Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Exposure at such time constitutes
of the aggregate amount of the Exposure of all the Banks at such time).
"Commitment Period": the period from and including the Closing Date to and
including the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein.
"Committed Exposure": as to any Bank, the sum of (a) the aggregate Dollar
Equivalent Amount of the principal amount of all outstanding Committed Rate
Loans made by such Bank plus (b) such Bank's Commitment Percentage of the
aggregate Dollar Equivalent Amount of the principal amount of all outstanding
Swing Line Loans.
"Committed Rate Loan": as defined in subsection 2.1; a Committed Rate Loan
bearing interest based upon the ABR shall be a "Committed Rate ABR Loan", and
a Committed Rate Loan bearing interest based upon a Eurocurrency Rate shall
be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001
of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
"Company Guarantee": the Guarantee of the Company, substantially in the form
of Exhibit F-1, as amended, supplemented or otherwise modified from time to
time.
"Competitive Advance Loan": as defined in subsection 3.1.
"Competitive Advance Loan Offer": with respect to any Competitive Advance
Loan Request in any Currency, an offer from a Bank in respect of such
Competitive Advance Loan Request, containing the information in respect of
such Competitive Advance Loan Offer and delivered to the Person, in the
manner and by the time specified for a Competitive Advance Loan Offer in
respect of such Currency in the Administrative Schedule.
"Competitive Advance Loan Request": with respect to any Competitive Advance
Loan in any Currency, a request from the Borrower in respect of such Loan,
containing the information in respect of such Competitive Advance Loan and
delivered to the Person, in the manner and by the time specified for a
Competitive Advance Loan Request in respect of such Currency in the
Administrative Schedule.
"Consolidated Cash Interest Expense": for any period, (a) the amount which
would, in conformity with GAAP, be set forth opposite the caption "interest
expense" or any like caption on a consolidated income statement of the
Company and its Subsidiaries minus (b) the amount of non-cash interest
(including interest paid by the issuance of additional securities) included
in such amount; provided that in the event of the consummation of any
Permitted Receivables Securitization, "Consolidated Cash Interest Expense"
shall be adjusted to include (without duplication) an amount equal to the
interest (or other fees in the nature of interest or discount) accrued and
paid or payable in cash for such period by the special purpose entity to the
Receivables Financiers under such Permitted Receivables Securitization.
"Consolidated Net Income": for any fiscal period, the consolidated net
income (or loss) of the Company and its Subsidiaries after excluding all
unusual, extraordinary and non-recurring gains and after adding all unusual,
extraordinary and non-recurring losses, in all cases of the Company and its
Subsidiaries determined on a consolidated basis during the relevant period in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which would be
included under shareholders' equity on a consolidated balance sheet of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum of (a)
Consolidated Net Worth plus (b) Consolidated Total Debt as at such date.
"Consolidated Total Debt": at the date of determination thereof, (i) all
Indebtedness of the Company and its Subsidiaries (excluding Indebtedness of
the Company owing to any of its Subsidiaries or Indebtedness of any
Subsidiary of the Company owing to the Company or any other Subsidiary of the
Company), as determined on a consolidated basis in accordance with GAAP plus
(ii) without duplication of amounts included in clause (i) above, an amount
equal to the aggregate unpaid amount of cash proceeds advanced by the
Receivables Financiers to the special purpose entity under any Permitted
Receivables Securitization at the date of determination.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Documents": this Agreement, the Subsidiary Guarantees and the
Company Guarantee.
"Currencies": the collective reference to Dollars and Available Foreign
Currencies.
"Default": any of the events specified in Section 10, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) the amount of any Available
Foreign Currency on any date, the equivalent amount in Dollars of such amount
of Available Foreign Currency, as determined by the Administrative Agent
using the Exchange Rate and (ii) any amount in Dollars, such amount.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such Person
organized under the laws of a State of the United States or the District of
Columbia.
"Domestic Subsidiary Borrower": each Subsidiary of the Company listed as a
Domestic Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 12.1(b)(i).
"Environmental Laws": any and all applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including, without limitation, common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"euro": the single currency of participating member states of the European
Union.
"Eurocurrency Loan": any Loan bearing interest based upon a Eurocurrency
Rate.
"Eurocurrency Rate": in respect of Dollars and each Available Foreign
Currency, the rate determined as the Eurocurrency Rate for Dollars or such
Available Foreign Currency in the manner set forth in the Administrative
Schedule.
"Event of Default": any of the events specified in Section 10, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Exchange Rate": with respect to any Available Foreign Currency on any date,
the rate at which such Available Foreign Currency may be exchanged into
Dollars, as set forth on such date on the relevant Reuters currency page at
or about 11:00 a.m. London time on such date. In the event that such rate
does not appear on any Reuters currency page, the "Exchange Rate" with
respect to such Available Foreign Currency shall be determined by reference
to such other publicly available service for displaying exchange rates as may
be agreed upon by the Administrative Agent and the Company or, in the absence
of such agreement, such "Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its foreign
currency exchange operations in respect of such Available Foreign Currency
are then being conducted, at or about 10:00 a.m., local time, at such date
for the purchase of Dollars with such Available Foreign Currency, for
delivery two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error
(without prejudice to the determination of the reasonableness of such
method).
"Existing Credit Agreement": as defined in the recitals hereof.
"Exposure": at any date, (a) as to all the Banks, the aggregate Dollar
Equivalent Amount of the outstanding principal amount of all Loans then
outstanding, (b) as to any Bank, the aggregate Dollar Equivalent Amount of
(i) the outstanding principal amount of all Committed Rate Loans and
Competitive Advance Loans made by such Bank and (ii) such Bank's Commitment
Percentage of the outstanding principal amount of all Swing Line Loans and
(c) as to any Borrower, the aggregate Dollar Equivalent Amount of the
outstanding principal amount of all Loans to such Borrower then outstanding.
"Facility Fee Rate": (i) for the period from and including the Closing Date
to and including September 30, 2001, 12.50 basis points and (ii) for any date
thereafter, a rate per annum determined based upon the Rating in effect on
such date by both S&P and Xxxxx'x set forth under the relevant column heading
below opposite such Rating:
Rating
(S&P/Xxxxx'x) Facility Fee Rate (in basis points) Greater than or equal to A-
/A3 9.00
Greater than or equal to BBB+/Baa1 10.00
Greater than or equal to BBB/Baa2 12.50
Greater than or equal to BBB-/Baa3 15.00
Less than BBB-/Baa3 20.00
; provided that, in the event that the Ratings of S&P and Xxxxx'x do not
coincide, the Facility Fee Rate set forth above opposite the lower of such
Ratings will apply, or if there is no Rating in effect, the Facility Fee Rate
will be based on the rating of less than BBB-/Baa3.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Foreign Currency Commitment": as to any Bank and any Available Foreign
Currency, the obligation of such Bank to make Committed Rate Loans hereunder
denominated in such Available Foreign Currency in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Bank's name on Schedule I under the caption "[Name of
applicable Available Foreign Currency] Commitment Amount", as such amount may
be changed from time to time in accordance with the provisions of this
Agreement.
"Foreign Currency Commitment Percentage": as to any Bank and any Available
Foreign Currency at any time, the percentage which such Bank's Foreign
Currency Commitment in such Available Foreign Currency then constitutes of
the aggregate Foreign Currency Commitments of all Banks in such Available
Foreign Currency.
"Foreign Subsidiary Borrower": each Subsidiary of the Company listed as a
Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 12.1(b)(i); provided that with respect to any
Subsidiary for which a Foreign Subsidiary Opinion has not previously been
delivered, if the aggregate Exposure of such Subsidiary owing to all Banks
exceeds $20,000,000 for a period of 30 consecutive days, then, unless a
Foreign Subsidiary Opinion is delivered within 30 days after the end of such
period, such Subsidiary shall cease to be a Foreign Subsidiary Borrower 30
days after the end of such period with respect to all Exposure of such
Subsidiary owing to the Banks in excess of $20,000,000.
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Banks concluding that such
Foreign Subsidiary Borrower and the Credit Documents to which it is a party
substantially comply with the matters listed on Exhibit G-3 hereto, with such
deviations therefrom as the Administrative Agent shall consent (such consent
not to be unreasonably withheld).
"Funding Office": (i) for each Type of Committed Rate Loan and each
Currency, the Funding Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as agreed
by the Borrower that borrows such Competitive Advance Loan, the Bank that
makes such Competitive Advance Loan and the Administrative Agent.
"Funding Time": (i) for each Type of Committed Rate Loan and each Currency,
the Funding Time set forth in respect thereof in the Administrative Schedule
and (ii) for each Competitive Advance Loan, as agreed by the Borrower that
borrows such Competitive Advance Loan, the Bank that makes such Competitive
Advance Loan and the Administrative Agent.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Governing Documents": as to any Person, the certificate or articles of
incorporation and by-laws or other organizational or governing documents of
such Person.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability
in respect thereof as determined by the Company in good faith.
"Guarantor": the Company or any Subsidiary in its capacity as a party to the
Company Guarantee or a Subsidiary Guarantee, as the case may be.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any swap,
futures, forward or option agreements or other agreements or arrangements
designed to limit or eliminate the risk and/or exposure of a Person to
fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or affiliates which
from time to time enter into Hedging Agreements with the Company or any of
its Subsidiaries.
"Increasing Bank": as defined in subsection 2.10(c).
"Indebtedness": of any Person at any date, without duplication, (a) the
principal amount of all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) the portion of all obligations of such Person under
Financing Leases which must be capitalized in accordance with GAAP, (d) the
principal or stated amount of all obligations of such Person in respect of
letters of credit, banker's acceptances or similar obligations issued or
created for the account of such Person, (e) all liabilities arising under
Hedging Agreements of such Person, (f) the principal or stated amount of all
Guarantee Obligations of such Person (other than guarantees by the Company or
any Subsidiary in respect of current trade liabilities of the Company or any
Subsidiary incurred in the ordinary course of business and payable in
accordance with customary terms), and (g) the principal amount of all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof.
"Initial Subsidiary Guarantee": the Subsidiary Guarantee executed on the
Closing Date by Support Net, Inc., an Indiana corporation, Gates/Arrow
Distributing, Inc., a Delaware corporation, and Mid Range Open Computing
Alliance, Inc., a Delaware corporation, substantially in the form of Exhibit
F-2, as the same may be amended, supplemented or otherwise modified from time
to time.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each March,
June, September and December, (b) as to any Committed Rate Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Committed Rate Eurocurrency Loan having an
Interest Period longer than three months, each day which is three months
after the first day of such Interest Period and the last day of such Interest
Period, (d) as to any Swing Line Loan, the last Business Day of each calendar
month during which such Swing Line Loan is outstanding, and (e) as to any
Competitive Advance Loan, the date or dates set forth in the applicable
Competitive Advance Loan Request or otherwise agreed upon by the relevant
Borrower and Bank at the time the terms of such Competitive Advance Loan are
determined as provided in subsection 3.2.
"Interest Period": with respect to any Committed Rate Eurocurrency Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower in its Notice of Borrowing or Notice of Conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower by a Notice of Continuation with respect thereto; provided that, all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(1) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Company is a party
or a beneficiary.
"Joinder Agreement": each Joinder Agreement, substantially in the form of
Exhibit A, from time to time executed and delivered hereunder pursuant to
subsection 12.1(b).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Loan": any Committed Rate Loan, Competitive Advance Loan or Swing Line
Loan.
"Loan Parties": the Company and each Subsidiary of the Company which is a
party to a Credit Document.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, (b) the ability of the Company
to perform its obligations under this Agreement or other Credit Documents or
(c) the validity or enforceability of this Agreement or any of the other
Credit Documents or the rights or remedies of the Administrative Agent, or
the Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Xxxxx'x": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"New Bank": as defined in subsection 2.10(b).
"New Bank Supplement": as defined in subsection 2.10(b).
"Non-Excluded Taxes": as defined in subsection 5.6.
"Notice of Borrowing": with respect to a Committed Rate Loan of any Type in
any Currency, a notice from the Borrower in respect of such Loan, containing
the information in respect of such Loan and delivered to the Person, in the
manner and by the time specified for a Notice of Borrowing in respect of such
Currency and such Type of Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate Eurocurrency Loan
in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Continuation
in respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan in Dollars
which a Borrower wishes to convert from a Eurocurrency Loan to an ABR Loan,
or from an ABR Loan to a Eurocurrency Loan, as the case may be, a notice from
such Borrower setting forth the amount of such Loan to be converted, the date
of such conversion and, in the case of conversions of ABR Loans to
Eurocurrency Loans, the length of the initial Interest Period applicable
thereto. Each Notice of Conversion shall be delivered to the Administrative
Agent at its address set forth in subsection 12.2 and shall be delivered
before 12:00 Noon, New York City time, on the Business Day of the requested
conversion in the case of conversions to ABR Loans, and before 12:00 Noon,
New York City time, three Business Days before the requested conversion in
the case of conversions to Eurocurrency Loans.
"Notice of Prepayment": with respect to prepayment of any Committed Rate
Loan of any Type in any Currency, a notice from the Borrower in respect of
such Loan, containing the information in respect of such prepayment and
delivered to the Person, in the manner and by the time specified for a Notice
of Prepayment in respect of such Currency and such Type of Loan in the
Administrative Schedule.
"Notice of Swing Line Borrowing": with respect to a Swing Line Loan of any
Type in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Swing Line Loan and delivered
to the Person, in the manner and by the time agreed by the Company and the
applicable Swing Line Bank in respect of such Currency and such Type of Loan.
"Notice of Swing Line Outstandings": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Outstandings in the Administrative Schedule.
"Notice of Swing Line Refunding": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Refunding in the Administrative Schedule.
"Objecting Bank": as defined in subsection 12.1(d).
"Offered Increase Amount": as defined in subsection 2.10(a).
"Participant": as defined in subsection 12.6(b).
"Payment Office": (i) for each Type of Committed Rate Loan and each
Currency, the Payment Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as agreed
by the Borrower that borrows such Competitive Advance Loan, the Bank that
makes such Competitive Advance Loan and the Administrative Agent.
"Payment Time": (i) for each Type of Committed Rate Loan and each Currency,
the Payment Time set forth in respect thereof in the Administrative Schedule
and (ii) for each Competitive Advance Loan, as agreed by the Borrower that
borrows such Competitive Advance Loan, the Bank that makes such Competitive
Advance Loan and the Administrative Agent.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Permitted Receivables Securitization": any transaction involving one or
more sales, contributions or other conveyances by the Company or any
Subsidiary of any Receivables to a special purpose entity (which may be a
Subsidiary or Affiliate of the Company), which special purpose entity
finances such sales, contributions or other conveyances by in turn conveying
an interest in such Receivables to one or more Receivable Financiers,
provided that such transaction shall not involve any recourse to the Company
or any Subsidiary (other than such special purpose entity) for any reason
other than (i) repurchases of non-eligible Receivables, (ii) indemnification
for losses (including any adjustments for dilutions), other than credit
losses related to the Receivables conveyed in such transaction and (iii)
payment of costs, fees, expenses and indemnities relating to such
transaction.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 6.18(a).
"Ratings": the actual or implied senior unsecured non-credit enhanced debt
ratings of the Company in effect from time to time by Xxxxx'x or S&P, as the
case may be, the bank debt rating of the Company in effect from time to time
by Xxxxx'x or the corporate credit rating of the Company in effect from time
to time by S&P.
"Re-Allocation Date": as defined in subsection 2.10(e).
"Receivables": all accounts receivable of the Company or any of its
Subsidiaries, and all proceeds thereof and rights (contractual and other) and
collateral related thereto.
"Receivable Financier": any Person (other than a Subsidiary or Affiliate of
the Company) that finances the acquisition by a special purpose entity of
Receivables from the Company or any Subsidiary.
"Register": as defined in subsection 12.6(d).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Replacement Bank": a bank or financial institution that assumes certain
Commitments and obligations and purchases certain Loans and rights pursuant
to subsection 5.7(b) or 14.1(e).
"Reportable Event": any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived
under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. S 2615.
"Required Banks": at any time, Banks the Commitment Percentages of which
aggregate more than 50%.
"Requirement of Law": as to any Person, the Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive officer, the
chairman of the board, the president, the chief financial officer, the chief
accounting officer, any executive or senior vice president or the treasurer
of such Person.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially in the form of
Exhibit B, executed and delivered pursuant to subsection 12.1.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Subsidiary Borrower": the collective reference to the Foreign Subsidiary
Borrowers and the Domestic Subsidiary Borrowers.
"Subsidiary Guarantee": each of (a) the Initial Subsidiary Guarantee and (b)
each other Subsidiary Guarantee, substantially in the form of the Initial
Subsidiary Guarantee with such changes as shall be approved by the
Administrative Agent, to be executed and delivered from time to time by any
other Domestic Subsidiary pursuant to subsection 8.9, in each case, as the
same may be amended, supplemented or otherwise modified from
time to time.
"Swing Line Bank": in respect of any Borrower and any Currency, each Bank
listed as a Swing Line Bank in respect of such Borrower and Currency in
Schedule III.
"Swing Line Currency": in respect of any Borrower, the Currency set forth
for such Borrower in Schedule III.
"Swing Line Limit": in respect of any Borrower, the amount listed as the
Swing Line Limit in respect of such Borrower in Schedule III, but not in any
case for all Borrowers to exceed a Dollar Equivalent Amount equal to
$50,000,000.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line Currency for each Swing
Line Bank, the interest rate agreed from time to time between the Company and
such Swing Line Bank.
"Target Operating Day": any day that is not (a) a Saturday or Sunday, (b)
Christmas Day or New Year's Day or (c) any other day on which the Trans-
European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative
Agent).
"Termination Date": February 21, 2002, as such date may be extended pursuant
to subsection 5.12.
"Three Year Credit Agreement": the Amended and Restated Three Year Credit
Agreement, dated as of February 22, 2001, as amended, among the Company, the
other borrowers named therein, Chase, as administrative agent, and others.
"Total Assets": at a particular date, the assets of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Tranche": the collective reference to Committed Rate Eurocurrency Loans in
any Currency the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 12.6(f).
"Type": in respect of any Loan, its character as a Committed Rate Loan,
Competitive Advance Loan or Swing Line Loan, as the case may be.
"UCC": the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.
"Undrawn Commitment": as to any Bank at any time, the amount of such Bank's
Commitment minus the amount of such Bank's Committed Exposure at such time
but not less than zero.
1.2 Other Definitional Provisions. Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The phrases "to the knowledge of the Company" and "of which any
Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Company or any such Subsidiary, as the case may be.
1.3 Accounting Determinations. Unless otherwise specified herein, all
accounting determinations for purposes of calculating or determining
compliance with the terms found in subsection 1.1 or the standards and
covenants found in subsection 9.1 and otherwise to be made under this
Agreement shall be made in accordance with GAAP applied on a basis consistent
in all material respects with that used in preparing the financial statements
referred to in subsection 6.1. If GAAP shall change from the basis used in
preparing such financial statements, the certificates required to be
delivered pursuant to subsection 8.2 demonstrating compliance with the
covenants contained herein shall set forth calculations setting forth the
adjustments necessary to demonstrate how the Company is in compliance with
the financial covenants based upon GAAP as in effect on the Closing Date.
SECTION 2. THE COMMITTED RATE LOANS
2.1 Committed Rate Loans. Subject to the terms and conditions hereof, each
Bank severally agrees to make loans on a revolving credit basis ("Committed
Rate Loans") to any Borrower from time to time during the Commitment Period;
provided, that no Committed Rate Loan shall be made if, after giving effect
to the making of such Loan and the simultaneous application of the proceeds
thereof, (i) the aggregate amount of the Exposure of all the Banks would
exceed the aggregate amount of the Commitments or (ii) in the case of
Committed Rate Loans denominated in an Available Foreign Currency, the
aggregate principal amount of Committed Rate Loans outstanding to any Bank in
such Currency would exceed the Foreign Currency Commitment of such Bank in
such Currency. During the Commitment Period, the Borrowers may use the
Commitments by borrowing, prepaying the Committed Rate Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Committed Rate Loans may be made in Dollars or any Available
Foreign Currency and may from time to time be (i) Committed Rate Eurocurrency
Loans, (ii) in the case of Committed Rate Loans in Dollars only, Committed
Rate ABR Loans or (iii) a combination thereof, as determined by the relevant
Borrower and set forth in the Notice of Borrowing or Notice of Conversion
with respect thereto; provided, that no Committed Rate Eurocurrency Loan
shall be made after the day that is one month prior to the Termination Date.
2.2 Procedure for Committed Rate Loan Borrowing. Any Borrower may request
the Banks to make Committed Rate Loans on any Business Day during the
Commitment Period by delivering a Notice of Borrowing. Each borrowing of
Committed Rate Loans (other than pursuant to a Swing Line refunding pursuant
to subsection 4.4) shall be in an amount equal to (a) in the case of ABR
Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if
the then aggregate undrawn amount of the Commitments is less than $1,000,000,
such lesser amount) and (b) in the case of Eurocurrency Loans, (i) if in
Dollars, $2,000,000 or increments of $500,000 thereafter, and (ii) if in any
Available Foreign Currency, an amount in such Available Foreign Currency of
which the Dollar Equivalent Amount is at least $2,000,000. Upon receipt of
any such Notice of Borrowing from a Borrower, the Administrative Agent shall
promptly notify each Bank that has a Commitment in the relevant Currency of
receipt of such Notice of Borrowing and of such Bank's Borrowing Percentage
of the Committed Rate Loans to be made pursuant thereto. Subject to the
terms and conditions hereof, each Bank that has a Commitment in the relevant
Currency will make its Borrowing Percentage of each such borrowing available
to the Administrative Agent for the account of such Borrower at the Funding
Office, and at or prior to the Funding Time, for the Currency of such Loan in
funds immediately available to the Administrative Agent in the applicable
Currency. The amounts made available by each Bank will then be made
available to such Borrower at the Funding Office, in like funds as received
by the Administrative Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt. Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Bank on the Termination Date (or such earlier date on which
the Loans become due and payable pursuant to Section 10), the then unpaid
principal amount of each Committed Rate Loan made by such Bank to such
Borrower. Each Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Committed Rate Loans made to such Borrower from time
to time outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 2.8. (b) Each Bank
shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of each Borrower to such Bank resulting from each
Committed Rate Loan of such Bank from time to time, including the amounts of
principal and interest payable and paid to such Bank from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Bank, in which shall be
recorded (i) the amount of each Committed Rate Loan made hereunder and each
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from each Borrower
to each Bank under Committed Rate Loans and (iii) the amount of any sum
received by the Administrative Agent from each Borrower in respect of
Committed Rate Loans, and the amount of each Bank's share thereof.
(d) The entries made in the Register and the accounts of each Bank
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of each Borrower to repay (with applicable interest) the Committed
Rate Loans made to such Borrower by such Bank in accordance with the terms of
this Agreement.
2.4 Termination or Reduction of Commitments. The Company shall have the
right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate the Commitments or, from time to time, to reduce the
amount of the Commitments. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple thereof and shall reduce permanently the
Commitments then in effect; provided that the Commitments may not be
optionally reduced at any time to an amount which is less than the amount of
the Exposure of all the Banks at such time; and provided further that the
Commitments may not be reduced to an amount which is less than $50,000,000
unless they are terminated in full.
2.5 Optional Prepayments. By giving a Notice of Prepayment, any Borrower
may, at any time and from time to time, prepay the Committed Rate Loans made
to such Borrower, in whole or in part, without premium or penalty (except as
provided in subsection 5.8). Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Bank thereof. If
any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any amounts payable
pursuant to subsection 5.8. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof or an aggregate principal Dollar Equivalent Amount of at least
$1,000,000 for Loans denominated in a Foreign Currency.
2.6 Conversion and Continuation Options. By giving a Notice of Conversion,
any Borrower may elect from time to time (i) to convert such Borrower's
Eurocurrency Loans in Dollars to ABR Loans or (ii) to convert such Borrower's
ABR Loans to Eurocurrency Loans in Dollars. Upon receipt of any Notice of
Conversion the Administrative Agent shall promptly notify each relevant Bank
thereof. All or any part of Eurocurrency Loans outstanding in Dollars or ABR
Loans may be converted as provided herein, provided that (i) no ABR Loan may
be converted into a Eurocurrency Loan when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Banks have
determined that such a conversion is not appropriate and (ii) no ABR Loan may
be converted into a Eurocurrency Loan after the date that is one month prior
to the Termination Date.
(b) By giving a Notice of Continuation, any Borrower may continue any of
such Borrower's Eurocurrency Loans as Eurocurrency Loans in the same Currency
for additional Interest Periods.
(c) Any Borrower may convert Committed Rate Loans outstanding in Dollars
or one Available Foreign Currency to Committed Rate Loans in Dollars or a
different Currency by repaying such Loans in the first Currency and borrowing
Loans of such different Currency in accordance with the applicable provisions
of this Agreement.
(d) If any Borrower shall fail to timely give a Notice of Continuation
or a Notice of Conversion in respect of any of such Borrower's Eurocurrency
Loans with respect to which an Interest Period is expiring, such Borrower
shall be deemed to have given a Notice of Continuation for an Interest Period
of one month.
2.7 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Committed Rate Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of the Committed
Rate Loans comprising (i) each Tranche in Dollars shall be not less than
$2,000,000 and (ii) each Tranche in any Available Foreign Currency shall be
not less than the Dollar Equivalent Amount in such Currency of $2,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate Loans. Each
Committed Rate Eurocurrency Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a rate per annum
equal to the ABR.
(c) If all or a portion of (i) the principal amount of any Committed
Rate Loan or (ii) any interest payable thereon shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2% or (y) in the
case of overdue interest, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable in arrears on each
Interest Payment Date; provided, that interest accruing pursuant to paragraph
(c) of this subsection shall be payable from time to time on demand.
2.9 Inability to Determine Interest Rate. If on or prior to the date on
which the Eurocurrency Rate is determined for any Interest Period in respect
of any Eurocurrency Loan in any Currency:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that, by reason of circumstances
affecting the relevant market generally, adequate and reasonable means do not
exist for ascertaining the Eurocurrency Rate for such affected Currency or
such affected Interest Period, or (b) the Administrative Agent shall have
received notice from Banks having Commitments comprising at least 25% of the
aggregate amount of the Commitments (or, in the case of Loans denominated in
an Available Foreign Currency, Banks having at least 25% of the Foreign
Currency Commitments in such Available Foreign Currency) that the
Eurocurrency Rate determined or to be determined for such affected Interest
Period will not adequately and fairly reflect the cost to such Banks (as
conclusively certified by such Banks) of making or maintaining their affected
Committed Rate Loans during such affected Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Company and the
Banks as soon as practicable thereafter. If such notice is given (x) any
Eurocurrency Loans requested to be made in such affected Currency on the
first day of such affected Interest Period shall be made as ABR Loans in
Dollars in the Dollar Equivalent Amount, (y) any Committed Rate Loans that
were to have been converted on the first day of such affected Interest Period
from ABR Loans to Eurocurrency Loans shall be continued as ABR Loans and (z)
any Eurocurrency Loans in such affected Currency that were to have been
continued as such shall be converted, on the first day of such Interest
Period, to ABR Loans in Dollars in the Dollar Equivalent Amount. Until such
notice has been withdrawn by the Administrative Agent, no further
Eurocurrency Loans in such affected Currency shall be made, converted to or
continued as such.
2.10 Commitment Increases. At any time after the Closing Date, provided that
no Event of Default shall have occurred and be continuing, the Borrowers may
request an increase of the aggregate Commitments by notice to the
Administrative Agent in writing of the amount (the "Offered Increase Amount")
of such proposed increase (such notice, a "Commitment Increase Notice"). Any
such Commitment Increase Notice must offer each Bank the opportunity to
subscribe for its pro rata share of the increased Commitments; provided,
however, the Borrowers may, with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld or delayed), without
offering to each Bank the opportunity to subscribe for its pro rata share of
the increased Commitments, offer to any bank or other financial institution
that is not an existing Bank the opportunity to provide a new Commitment
pursuant to paragraph (b) below. If any portion of the increased Commitments
offered to the Banks as contemplated in the immediately preceding sentence is
not subscribed for by the Banks, the Borrowers may, with the consent of the
Administrative Agent as to any bank or financial institution that is not at
such time a Bank (which consent shall not be unreasonably withheld or
delayed), offer to any existing Bank or to one or more additional banks or
financial institutions the opportunity to provide all or a portion of such
unsubscribed portion of the increased Commitments pursuant to paragraph (b)
below.
(b) Any additional bank or financial institution that the Borrowers
select to offer the opportunity to provide any portion of the increased
Commitments, and that elects to become a party to this Agreement and provide
a Commitment, shall execute a New Bank Supplement with the Borrowers and the
Administrative Agent, substantially in the form of Exhibit K (a "New Bank
Supplement"), whereupon such bank or financial institution (a "New Bank")
shall become a Bank for all purposes and to the same extent as if originally
a party hereto and shall be bound by and entitled to the benefits of this
Agreement, and Schedule I shall be deemed to be amended to add the name and
Commitment of such New Bank, provided that the Commitment of any such New
Bank shall be in a principal amount not less than $10,000,000.
(c) Any Bank that accepts an offer to it by the Borrowers to increase
its Commitment pursuant to this subsection 2.10 shall, in each case, execute
a Commitment Increase Supplement with the Borrowers and the Administrative
Agent, substantially in the form of Exhibit L (a "Commitment Increase
Supplement"), whereupon such Bank (an "Increasing Bank") shall be bound by
and entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased, and Schedule I shall be deemed to
be amended to so increase the Commitment of such Bank.
(d) The effectiveness of any New Bank Supplement or Commitment Increase
Supplement shall be contingent upon receipt by the Administrative Agent of
such corporate resolutions of the Borrowers and legal opinions of counsel to
the Borrowers as the Administrative Agent shall reasonably request with
respect thereto.
(e) (i) Except as otherwise provided in subparagraphs (ii) and (iii) of
this paragraph (e), if any bank or financial institution becomes a New Bank
pursuant to subsection 2.10(b) or any Bank's Commitment is increased pursuant
to subsection 2.10(c), additional Committed Rate Loans made on or after the
date of the effectiveness thereof (the "Re-Allocation Date") shall be made in
accordance with the pro rata provisions of subsection 5.3 based on the
Commitment Percentages (or relevant Foreign Currency Commitment Percentages,
as the case may be) in effect on and after such Re-Allocation Date (except to
the extent that any such pro rata borrowings would result in any Bank making
an aggregate principal amount of Committed Rate Loans in excess of its
Commitment (or relevant Foreign Currency Commitment, as the case may be), in
which case such excess amount will be allocated to, and made by, the relevant
New Banks and Increasing Banks to the extent of, and in accordance with the
pro rata provisions of subsection 5.3 based on, their respective Commitments
(or relevant Foreign Currency Commitments, as the case may be). On each Re-
Allocation Date, the Administrative Agent shall deliver a notice to each Bank
of the adjusted Commitment Percentages after giving effect to any increase in
the aggregate Commitments made pursuant to this subsection 2.10 on such Re-
Allocation Date.
(ii) In the event that on any such Re-Allocation Date there is an unpaid
principal amount of ABR Loans, the applicable Borrower shall make prepayments
thereof and one or more Borrowers shall make borrowings of ABR Loans and/or
Eurocurrency Loans, as the applicable Borrower shall determine, so that,
after giving effect thereto, the ABR Loans and Eurocurrency Loans outstanding
are held as nearly as may be in accordance with the pro rata provisions of
subsection 5.3 based on such new Commitment Percentages.
(iii) In the event that on any such Re-Allocation Date there is an unpaid
principal amount of Eurocurrency Loans, such Eurocurrency Loans shall remain
outstanding with the respective holders thereof until the expiration of their
respective Interest Periods (unless the applicable Borrower elects to prepay
any thereof in accordance with the applicable provisions of this Agreement),
and on the last day of the respective Interest Periods the applicable
Borrower shall make prepayments thereof and the applicable Borrowers shall
make borrowings of ABR Loans and/or Eurocurrency Loans so that, after giving
effect thereto, the ABR Loans and Eurocurrency Loans outstanding are held by
all the Banks as nearly as may be in accordance with the pro rata provisions
of subsection 5.3 based on such new Commitment Percentages.
(f) Notwithstanding anything to the contrary in this subsection 2.10,
(i) in no event shall any transaction effected pursuant to this subsection
2.10 cause the Aggregate Commitments to exceed $1,500,000,000 and (ii) no
Bank shall have any obligation to increase its Commitment unless it agrees to
do so in its sole discretion.
2.11 Refunding of Committed Rate Loans Denominated in Available Foreign
Currencies. Notwithstanding noncompliance with the conditions precedent set
forth in subsection 7.2, if any Committed Rate Loans denominated in any
Available Foreign Currency (any such Loans, "Specified Loans") are
outstanding on (i) any date on which an Event of Default pursuant to Section
10(g) shall have occurred with respect to the Company or (ii) any
Acceleration Date, then, at 10:00 A.M., New York City time, on the second
Business Day immediately succeeding (x) the date on which such Event of
Default occurs (in the case of clause (i) above) or (y) such Acceleration
Date (in the case of clause (ii) above), the Administrative Agent shall be
deemed to have received a notice from the Company pursuant to subsection 2.2
requesting that ABR Loans be made pursuant to subsection 2.1 on such second
Business Day in an aggregate amount equal to the Dollar Equivalent Amount of
the aggregate amount of all Specified Loans, and the procedures set forth in
subsection 2.2 shall be followed in making such ABR Loans. The proceeds of
such ABR Loans shall be applied to repay such Specified Loans.
(b) If, for any reason, ABR Loans may not be made pursuant to paragraph
(a) of this subsection 2.11 to repay Specified Loans as required by such
paragraph, effective on the date such ABR Loans would otherwise have been
made, (i) the principal amount of each relevant Specified Loan shall be
converted into Dollars (calculated on the basis of the Exchange Rate as of
the immediately preceding Business Day) ("Converted Specified Loans") and
(ii) each Bank severally, unconditionally and irrevocably agrees that it
shall purchase in Dollars a participating interest in such Converted
Specified Loans in an amount equal to the amount of ABR Loans which would
otherwise have been made by such Bank pursuant to paragraph (a) of this
subsection 2.11. Each Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and
the proceeds of such participation shall be distributed by the Administrative
Agent to each Bank having such Specified Loans in such amount as will reduce
the amount of the participating interest retained by such Bank in the
Converted Specified Loans to the amount of the ABR Loans which were to have
been made by it pursuant to paragraph (a) of this subsection 2.11. All
Converted Specified Loans shall bear interest at the rate which would
otherwise be applicable to ABR Loans. Each Bank shall share on a pro rata
basis (calculated by reference to its participating interest in such
Converted Specified Loans) in any interest which accrues thereon and in all
repayments thereof.
(c) If, for any reason, ABR Loans may not be made pursuant to paragraph
(a) of this subsection 2.11 to repay Specified Loans as required by such
paragraph and the principal amount of any Specified Loans may not be
converted into Dollars in the manner contemplated by paragraph (b) of this
subsection 2.11, (i) the Administrative Agent shall determine the Dollar
Equivalent Amount of such Specified Loans (calculated on the basis of the
Exchange Rate determined as of the Business Day immediately preceding the
date on which ABR Loans would otherwise have been made pursuant to said
paragraph (a)) and (ii) effective on the date on which ABR Loans would
otherwise have been made pursuant to said paragraph (a), each Bank severally,
unconditionally and irrevocably agrees that it shall purchase in Dollars a
participating interest in such Specified Loans in an amount equal to the
amount of ABR Loans which would otherwise have been made by such Bank
pursuant to paragraph (a) of this subsection 2.11. Each Bank will
immediately transfer to the Administrative Agent, in immediately available
funds, the amount of its participation, and the proceeds of such
participation shall be distributed by the Administrative Agent to each
relevant Bank having Specified Loans in such amount as will reduce the Dollar
Equivalent Amount as of such date of the amount of the participating interest
retained by such Bank in such Specified Loans to the amount of the ABR Loans
which were to have been made by it pursuant to paragraph (a) of this
subsection 2.11. Each Bank shall share on a pro rata basis (calculated by
reference to its participating interest in such Specified Loans) in any
interest which accrues thereon, in all repayments of principal thereof and in
the benefits of any collateral furnished in respect thereof and the proceeds
of such collateral.
(d) If any amount required to be paid by any Bank to any other Bank
pursuant to this subsection 2.11 in respect of any Specified Loan is not paid
to such Bank on the date such payment is due from such Bank, such obligor
Bank shall pay to such obligee Bank on demand an amount equal to the product
of (i) such amount, times (ii) the daily average Federal funds rate, as
quoted by such obligee Bank during the period from and including the date
such payment is required to the date on which such payment is immediately
available to such obligee Bank, times (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. A certificate of an obligee Bank submitted to any obligor Bank
through the Administrative Agent with respect to any amounts owing under this
subsection (d) shall be conclusive in the absence of manifest error.
2.12 Certain Borrowings of Committed Rate Loans and Refunding of Loans. (a)
If on any Borrowing Date on which a Specified Borrower has requested the
Banks (the "Specified Foreign Currency Banks") to make Committed Rate Loans
denominated in an Available Foreign Currency (the "Requested Specified
Loans") (i) the principal amount of the Requested Specified Loans to be made
by any Specified Foreign Currency Bank exceeds the unused amount of the
Commitment of such Specified Foreign Currency Bank in the requested Available
Foreign Currency (before giving effect to the making and payment of any Loans
required to be made pursuant to this subsection 2.12 on such Borrowing Date),
(ii) the principal amount of such Requested Specified Loan, when added to the
outstanding principal amount of all other Committed Rate Loans of such
Specified Foreign Currency Banks denominated in the Available Foreign
Currency in which the Requested Specified Loans are to be made, does not
exceed the aggregate amount of such Specified Foreign Currency Banks' Foreign
Currency Commitments in such requested Available Foreign Currency and (iii)
the Dollar Equivalent of the amount of the excess described in the foregoing
clause (i) is less than or equal to the aggregate unused amount of the
Commitments of all Banks other than such Specified Foreign Currency Banks
(before giving effect to the making and payment of any Loans pursuant to this
subsection 2.12 on such Borrowing Date), each Bank other than such Specified
Foreign Currency Banks shall make a Committed Rate Loan denominated in
Dollars to the Company (or any Borrower identified by the Company) on such
Borrowing Date, and the proceeds of such Committed Rate Loans shall be
simultaneously applied to repay outstanding Committed Rate Loans denominated
in Dollars of such Specified Foreign Currency Banks in each case in amounts
such that, after giving effect to (1) such borrowings and repayments and (2)
the borrowing from such Specified Foreign Currency Banks of the Requested
Specified Loans, the excess described in the foregoing clause (i) will be
eliminated. To effect such borrowings and repayments, (x) not later than
12:00 Noon, New York City time, on such Borrowing Date, the proceeds of such
Committed Rate Loans denominated in Dollars shall be made available by each
Bank other than such Specified Foreign Currency Banks to the Administrative
Agent at its office specified in subsection 12.2 in Dollars and in
immediately available funds and the Administrative Agent shall apply the
proceeds of such Committed Rate Loans denominated in Dollars toward repayment
of outstanding Committed Rate Loans denominated in Dollars of such Specified
Foreign Currency Banks (as directed by the Company) and (y) concurrently with
the repayment of such Loans on such Borrowing Date, (I) such Specified
Foreign Currency Banks shall, in accordance with the applicable provisions
hereof, make the Requested Specified Loans in an aggregate amount equal to
the amount so requested by the relevant Borrower and (II) the relevant
Borrower shall pay to the Administrative Agent for the account of the
Specified Foreign Currency Banks whose Loans to such Borrower are repaid on
such Borrowing Date pursuant to this subsection 2.12 all interest accrued on
the amounts repaid to the date of repayment, together with any amounts
payable pursuant to subsection 5.8 in connection with such repayment,
provided that the Administrative Agent shall have provided notice to the
Company prior to the making of such Requested Specified Loans that the making
thereof would obligate the Company to pay amounts pursuant to subsection 5.8.
(b) If any borrowing of Committed Rate Loans is required pursuant to
this subsection 2.12, the Company shall notify the Administrative Agent in
the manner provided for Committed Rate Loans in subsection 2.3, except that
the minimum borrowing amounts and threshold multiples in excess thereof
applicable to ABR Loans set forth in subsection 2.3 shall not be applicable
to the extent that such minimum borrowing amounts exceed the amounts of
Committed Rate Loans required to be made pursuant to this subsection 2.12.
SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1 Competitive Advance Loans. Subject to the terms and conditions hereof,
any Borrower may, from time to time during the Commitment Period, request the
Banks to offer bids, and any Bank may, in its sole discretion, offer such
bids, to make competitive advance loans ("Competitive Advance Loans") to such
Borrower on the terms and conditions set forth in such bids. Each
Competitive Advance Loan shall bear interest at the rates, be payable on the
dates, and shall mature on the date, agreed between such Borrower and Bank at
the time such Competitive Advance Loan is made; provided, that (i) each
Competitive Advance Loan shall mature not earlier than 1 day and not later
than 180 days, after the date such Competitive Advance Loan is made and (ii)
no Competitive Advance Loan shall mature after the Termination Date. During
the Commitment Period, the Borrowers may accept bids from Banks from time to
time for Competitive Advance Loans, and borrow and repay Competitive Advance
Loans, all in accordance with the terms and conditions hereof; provided, that
no Competitive Advance Loan shall be made if, after giving effect to the
making of such Loan and the simultaneous application of the proceeds thereof,
the aggregate amount of the Exposure of all the Banks would exceed the
aggregate amount of the Commitments. Subject to the foregoing, any Bank may,
in its sole discretion, make Competitive Advance Loans in an aggregate
outstanding amount exceeding the amount of such Bank's Commitment.
(b) The Competitive Advance Loans may be made in Dollars or any
Available Foreign Currency, as agreed between the Borrower and Bank in
respect thereof at the time such Competitive Advance Loan is made.
3.2 Procedure for Competitive Advance Loan Borrowing
(a) Any Borrower may request Competitive Advance Loans by delivering a
Competitive Advance Loan Request. The Administrative Agent shall notify each
Bank promptly by facsimile transmission of the contents of each Competitive
Advance Loan Request received by the Administrative Agent. Each Bank may
elect, in its sole discretion, to offer irrevocably to make one or more
Competitive Advance Loans to the Borrower by delivering a Competitive Advance
Loan Offer to the Administrative Agent.
(b) Before the acceptance time set forth in the applicable Competitive
Advance Loan Request, the relevant Borrower, in its absolute discretion,
shall:
(i) cancel such Competitive Advance Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
immediately confirmed in writing or by facsimile transmission, subject to the
provisions of subsection 3.2(c), accept one or more of the offers made by any
Bank or Banks pursuant to subsection 3.2(a) of the amount of Competitive
Advance Loans for each relevant maturity date and reject any remaining offers
made by Banks pursuant to
subsection 3.2(a).
(c) The relevant Borrower's acceptance of Competitive Advance Loans in
response to any Competitive Advance Loan Request shall be subject to the
following limitations:
(i) The amount of Competitive Advance Loans accepted for each
maturity date specified by any Bank in its Competitive Advance Loan Offer
shall not exceed the maximum amount for such maturity date specified in such
Competitive Advance Loan Offer;
(ii) the aggregate amount of Competitive Advance Loans accepted for
all maturity dates specified by any Bank in its Competitive Advance Loan
Offer shall not exceed the aggregate maximum amount specified in such
Competitive Advance Loan Offer for all such maturity dates;
(iii) such Borrower may not accept offers for Competitive Advance
Loans for any maturity date in an aggregate principal amount in excess of the
maximum principal amount requested in the related Competitive Advance Loan
Request; and
(iv) if such Borrower accepts any of such offers, it must accept
offers based solely upon pricing for such relevant maturity date and upon no
other criteria whatsoever and if two or more Banks submit offers for any
maturity date at identical pricing and such Borrower accepts any of such
offers but does not wish to (or by reason of the limitations set forth in
subsection 3.2(c)(iii) cannot) borrow the total amount offered by such Banks
with such identical pricing, the Administrative Agent shall allocate offers
from all of such Banks in amounts among them pro rata according to the
amounts offered by such Banks (or as nearly pro rata as shall be
practicable).
(d) If the relevant Borrower notifies the Administrative Agent that a
Competitive Advance Loan Request is cancelled, the Administrative Agent shall
give prompt telephone notice thereof to the Banks.
(e) If the relevant Borrower accepts one or more of the offers made by
any Bank or Banks, the Administrative Agent promptly shall notify each Bank
which has made such a Competitive Advance Loan Offer of (i) the aggregate
amount of such Competitive Advance Loans to be made for each maturity date
and (ii) the acceptance or rejection of any offers to make such Competitive
Advance Loans made by such Bank. Before the Funding Time for the applicable
Currency, each Bank whose Competitive Advance Loan Offer has been accepted
shall make available to the Administrative Agent for the account of the
relevant Borrower at the Funding Office for the applicable Currency the
amount of Competitive Advance Loans in the applicable Currency to be made by
such Bank, in immediately available funds.
3.3 Repayment of Competitive Advance Loans; Evidence of Debt. Each Borrower
that borrows any Competitive Advance Loan hereby unconditionally promises to
pay to the Bank that made such Competitive Advance Loan on the maturity date,
as agreed by such Borrower and Bank (or such earlier date on which all the
Loans become due and payable pursuant to Section 10), the then unpaid
principal amount of such Competitive Advance Loan. Each Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Competitive Advance Loans made by any Bank to such Borrower from time to time
outstanding from the date thereof until payment in full thereof at the rate
per annum, and on the dates, agreed by such Borrower and Bank at the time
such Competitive Advance Loan is made. All payments in respect of
Competitive Advance Loans shall be made by such Borrower to the
Administrative Agent for the account of the Bank that makes such Competitive
Advance Loan to the Payment Office and by the Payment Time for the applicable
Currency.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Bank
resulting from each Competitive Advance Loan of such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time in respect of Competitive Advance Loans. The entries made
in the accounts of each Bank maintained pursuant to this subsection 3.3(b)
shall, to the extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of each Borrower therein
recorded, absent manifest error; provided, however, that the failure of any
Bank to maintain any such account, or any error therein, shall not in any
manner affect the obligation of each Borrower to repay (with applicable
interest) the Competitive Advance Loans made to such Borrower by such Bank in
accordance with the terms of this Agreement.
3.4 Prepayments. Unless otherwise agreed by the Bank making a Competitive
Advance Loan, upon giving a Notice of Prepayment at the address and time
specified in Schedule IV may be optionally prepaid prior to the scheduled
maturity date thereof.
SECTION 4. THE SWING LINE LOANS
4.1 Swing Line Loans. Subject to the terms and conditions hereof, each
Borrower may borrow from such Borrower's Swing Line Bank swing line loans
("Swing Line Loans") from time to time during the Commitment Period in a
Swing Line Currency of such Borrower; provided, that no Swing Line Loan shall
be made if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, (i) the aggregate amount of
the Exposure of all the Banks would exceed the aggregate amount of the
Commitments, or (ii) the aggregate Dollar Equivalent Amount of all
outstanding Swing Line Loans of such Borrower would exceed the Swing Line
Limit for such Borrower or the Dollar Equivalent Amount of all outstanding
Swing Line Loans would exceed the Swing Line Limit. During the Commitment
Period, the Borrowers may borrow and prepay the Swing Line Loans, in whole or
in part, all in accordance with the
terms and conditions hereof.
4.2 Procedure for Swing Line Borrowing. Any Borrower may borrow Swing Line
Loans during the Commitment Period on any Business Day by giving a Notice of
Swing Line Borrowing in respect of such Swing Line Loan. Subject to the
terms and conditions hereof, on the Borrowing Date of each Swing Line Loan,
the relevant Swing Line Bank shall make the proceeds thereof available to the
relevant Borrower in immediately available funds in the applicable Currency
in the manner from time to time agreed by such Borrower and such Swing Line
Bank.
(b) Upon request of the Administrative Agent and on the last Business
Day of each month on which a Swing Line Bank has any outstanding Swing Line
Loans, such Bank shall deliver to the Administrative Agent a Notice of Swing
Line Outstandings. The Administrative Agent will, at the request of any
Swing Line Bank, advise such Swing Line Bank of the Exchange Rate used by the
Administrative Agent in calculating the Dollar Equivalent Amount of Swing
Line Loans of such Swing Line Bank on any date.
4.3 Repayment of Swing Line Loans; Evidence of Debt. Each Borrower hereby
unconditionally promises to pay to its Swing Line Bank on the Termination
Date (or such earlier date on which such Swing Line Loans become due and
payable pursuant to subsection 4.4 or on which all the Loans become due and
payable pursuant to Section 10), the then unpaid principal amount of all
Swing Line Loans made to such Borrower. Each Borrower hereby further agrees
to pay interest on the unpaid principal amount of all Swing Line Loans made
to such Borrower from time to time outstanding from the date thereof until
payment in full thereof at the Swing Line Rate for the Currency of such Swing
Line Loan, payable on the last Business Day of each calendar month on which
such Swing Line Loans are outstanding. All payments in respect of Swing Line
Loans shall be made by such Borrower to its Swing Line Bank at the address
set forth in Schedule III for such Swing Line Bank and Swing Line Loans in
such Currency.
(b) Each Swing Line Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to
such Swing Line Bank resulting from each Swing Line Loan of such Bank from
time to time, including the amounts of principal and interest payable and
paid to such Swing Line Bank from time to time under this Agreement. The
entries made in the accounts of each Swing Line Bank maintained pursuant to
this subsection 4.3(b) shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of each
Borrower therein recorded; provided, however, that the failure of any Swing
Line Bank to maintain any such account, or any error therein, shall not in
any manner affect the obligation of each Borrower to repay (with applicable
interest) the Swing Line Loans made to such Borrower by such Swing Line Bank
in accordance with the terms of this Agreement.
4.4 Allocating Swing Line Loans; Swing Line Loan Participations. If any
Event of Default shall occur and be continuing, any Swing Line Bank may, in
its sole and absolute discretion, direct that the Swing Line Loans owing to
it be refunded, by delivering a Notice of Swing Line Refunding. Upon receipt
of a Notice of Swing Line Refunding the Administrative Agent shall promptly
give notice of the contents thereof to the Banks and, unless an Event of
Default described in Section 10(g) in respect of the Company or the relevant
Borrower has occurred, to the Company and the relevant Borrower. Each such
Notice of Swing Line Refunding shall be deemed to constitute delivery by such
Borrower of a Notice of Borrowing of Committed Rate Eurocurrency Loans in the
amount and Currency of the Swing Line Loans to which it relates, for an
Interest Period of one month's duration. Subject to the terms and conditions
hereof, each Bank (including each Swing Line Bank in its capacity as a Bank
having a Commitment) hereby agrees to make a Committed Rate Loan to such
Borrower pursuant to Section 2 in an amount equal to such Bank's Borrowing
Percentage of the aggregate amount of the Swing Line Loans to which such
Notice of Swing Line Refunding relates. Unless any of the events described
in Section 10(g) in respect of the Company or such Borrower shall have
occurred (in which case the procedures of subsection 4.4(b) shall apply),
each Bank shall make the amount of such Committed Rate Loan available to the
Administrative Agent at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available to the
Administrative Agent. The proceeds of such Committed Rate Loans shall be
immediately made available to such Swing Line Bank by the Administrative
Agent and applied by such Swing Line Bank to repay the Swing Line Loans to
which such Notice of Swing Line Refunding related.
(b) If prior to the time a Committed Rate Loan would have otherwise been
made pursuant to subsection 4.4(a), one of the events described in Section
10(g) shall have occurred in respect of the Company or the relevant Borrower,
each Bank (other than the relevant Swing Line Bank) shall, on the date such
Committed Rate Loan would have been made pursuant to the Notice of Swing Line
Refunding referred to in subsection 4.4(a) (the "Refunding Date"), purchase
an undivided participating interest in the outstanding Swing Line Loans to
which such Notice of Swing Line Refunding related, in an amount equal to (i)
such Bank's Commitment Percentage times (ii) the aggregate principal amount
of such Swing Line Loans then outstanding which were to have been repaid with
Committed Rate Loans (the "Swing Line Participation Amount"). On the
Refunding Date, (x) each Bank shall transfer to such Swing Line Bank, in
immediately available funds, such Bank's Swing Line Participation Amount, and
upon receipt thereof such Swing Line Bank shall, if requested by any Bank,
deliver to such Bank a participation certificate dated the date of such Swing
Line Bank's receipt of such funds and evidencing such Bank's ownership of its
Swing Line Participation Amount and (y) the interest rate on the applicable
Swing Line Loan will automatically be converted to the applicable
Eurocurrency Rate with an Interest Period of one month plus the Applicable
Margin. If any amount required to be paid by any Bank to any Swing Line Bank
pursuant to this subsection 4.4 in respect of any Swing Line Participation
Amount is not paid to such Swing Line Bank on the date such payment is due
from such Bank, such Bank shall pay to such Swing Line Bank on demand an
amount equal to the product of (i) such amount, times (ii) (A) in the case of
any such payment obligation denominated in Dollars, the daily average Federal
funds rate, as quoted by such Swing Line Bank, or (B) in the case of any such
payment obligation denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations,
as quoted by such Swing Line Bank, in each case during the period from and
including the date such payment is required to the date on which such payment
is immediately available to the Swing Line Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of a Swing Line Bank
submitted to any Bank with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Swing Line Bank has received from
any Bank such Bank's Swing Line Participation Amount, such Swing Line Bank
receives any payment on account of the related Swing Line Loans, such Swing
Line Bank will distribute to such Bank its Commitment Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Bank's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by such Swing
Line Bank is required to be returned, such Bank will return to such Swing
Line Bank any portion thereof previously distributed to it by such Swing Line
Bank.
(d) Each Bank's obligation to make Committed Rate Loans pursuant to
subsection 4.4(a) and to purchase participating interests pursuant to
subsection 4.4(b) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or any Borrower, or any Borrower may have against any
Bank or any other Person, as the case may be, for any reason whatsoever; (ii)
the occurrence or continuance of a Default or an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Company or
any of its Subsidiaries; (iv) any breach of this Agreement by any party
hereto; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS
5.1 Facility Fee; Utilization Fee; Other Fees; Other Payments. The Company
shall pay to the Administrative Agent for the account of each Bank a facility
fee for the period from and including the Closing Date to, but excluding, the
Termination Date, computed at the Facility Fee Rate in effect from time to
time on the average daily amount of the Commitment (used and unused) of such
Bank during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on
the Termination Date or such earlier date on which the Commitments shall
terminate as provided herein, commencing on the first of such dates to occur
after the date hereof.
(b) The Company shall pay to the Administrative Agent for the account of
each Bank a utilization fee of (i) 0.125% per annum on such Bank's Commitment
Percentage of the aggregate outstanding principal amount of Committed Rate
Loans and Swing Line Loans for each day on which the Aggregate Committed
Outstandings are equal to or exceed 33-1/3% of the Aggregate Commitments but
are less than 66-2/3% of the Aggregate Commitments and (ii) 0.375% per annum
on such Bank's Commitment Percentage of the aggregate outstanding principal
amount of Committed Rate Loans and Swing Line Loans for each day on which the
Aggregate Committed Outstandings are equal to or exceed 66-2/3% of the
Aggregate Commitments, in each case, payable quarterly in arrears on the last
day of each March, June, September and December and on the Termination Date
or such earlier date on which the Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date hereof.
(c) The Company agrees to pay to the Administrative Agent, for its own
account and for the account of the Arranger, the fees in the amounts and on
the dates agreed to by such parties in writing prior to the date of this
Agreement.
5.2 Computation of Interest and Fees. Facility and utilization fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the relevant Borrower and the Banks
of each determination of a Eurocurrency Rate. Any change in the ABR due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively. The Administrative Agent shall as soon as
practicable notify the relevant Borrower and the Banks of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrowers and the Banks in the absence of manifest error.
5.3 Pro Rata Treatment and Payments. Each payment by the Company on account
of any facility fee or utilization fee hereunder and any reduction of the
Commitments of the Banks shall be made pro rata according to the respective
Commitment Percentages of the Banks. Each disbursement of Committed Rate
Loans in any Currency shall be made by the Banks holding Commitments in such
Currency pro rata according to the respective Borrowing Percentages of such
Banks. Each payment (including each prepayment) by any Borrower on account
of principal of and interest on any Loans in any Currency shall be made pro
rata according to the respective principal amounts of the Loans of such
Currency of such Borrower then due and owing to the Banks. All payments
(including prepayments) to be made by any Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without set
off or counterclaim. All payments in respect of Loans in any Currency shall
be made in such Currency and in immediately available funds at the Payment
Office, and at or prior to the Payment Time, for such Type of Loans and such
Currency, on the due date thereof. The Administrative Agent shall distribute
to the Banks any payments received by the Administrative Agent promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified in writing
by any Bank prior to a Borrowing Date in respect of Committed Rate Loans that
such Bank will not make the amount that would constitute its Borrowing
Percentage of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Bank is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Bank shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to (A) in the case of any such Committed
Rate Loans denominated in Dollars, the daily average Federal funds rate, as
quoted by the Administrative Agent, or (B) in the case of any Committed Rate
Loans denominated in an Available Foreign Currency, the rate customary in
such Currency for settlement of similar inter-bank obligations, as quoted by
the Administrative Agent, in each case for the period until such Bank makes
such amount immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Bank with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Bank's Borrowing Percentage of such borrowing is not made
available to the Administrative Agent by such Bank within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Swing Line Loans in such Currency hereunder, on demand, from the relevant
Borrower.
5.4 Illegality. Notwithstanding any other provision herein, if the adoption
of or any change in any Requirement of Law or in the interpretation thereof
by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to make or
maintain Loans to one or more Foreign Subsidiary Borrowers contemplated by
this Agreement, the commitment of such Bank hereunder to make Loans to such
Foreign Subsidiary Borrowers and continue Loans to such Foreign Subsidiary
Borrowers as such shall forthwith be cancelled to the extent necessary to
remedy or prevent such illegality. Nothing in this subsection 5.4 shall
affect the obligation of the Banks to make and maintain Loans to the Company.
5.5 Requirements of Law. If the adoption of or any change in any Requirement
of Law (other than the Certificate of Incorporation and By-Laws or other
organizational or governing documents of the Banks) or in the interpretation
or application thereof or compliance by any Bank with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank or any corporation controlling such Bank or
from which such Bank obtains funding or credit to any tax of any kind
whatsoever with respect to this Agreement, or any Eurocurrency Loan made by
it, or change the basis of taxation of payments to such Bank or such
corporation in respect thereof (except for Non-Excluded Taxes covered by
subsection 5.6 (including taxes excluded under the first sentence of
subsection 5.6(a)) and changes in the rate of tax on the overall net income
of such Bank or such corporation);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or any corporation controlling such Bank or from which
such Bank obtains funding or credit which is not otherwise included in the
determination of the Eurocurrency Rate hereunder; or
(iii) shall impose on such Bank or any corporation controlling such Bank
or from which such Bank obtains funding or credit any other condition; and
the result of any of the foregoing is to increase the cost to such Bank or
such corporation, by an amount which such Bank or such corporation deems to
be material, of making, converting into, continuing or maintaining
Eurocurrency Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Company shall promptly pay such Bank,
within five Business Days after its demand, any additional amounts necessary
to compensate such Bank for such increased cost or reduced amount receivable,
together with interest on each such amount from the date due until payment in
full at a rate per annum equal to the ABR plus 2%. If any Bank becomes
entitled to claim any additional amounts pursuant to this subsection, it
shall promptly notify the Company, through the Administrative Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by such
Bank, through the Administrative Agent, to the Company shall be conclusive in
the absence of manifest error. This covenant shall survive the termination
of this Agreement and the payment of Loans and all other amounts payable
hereunder.
(b) If any Bank shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation
or application thereof or compliance by such Bank or any corporation
controlling such Bank or from which such Bank obtains funding or credit with
any request or directive regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority made subsequent to the date
hereof does or shall have the effect of reducing the rate of return on such
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Bank or such corporation could
have achieved but for such change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Bank to be material, then from time to time,
after submission by such Bank to the Company (with a copy to the
Administrative Agent) of a written request therefor (which written request
shall be conclusive in the absence of manifest error), the Company shall pay
to such Bank such additional amount or amounts as will compensate such Bank
for such reduction.
(c) In addition to, and without duplication of, amounts which may become
payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 5.5, each Borrower agrees to pay to each Bank which requests
compensation under this paragraph (c) by notice to such Borrower, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Bank to such Borrower, at any time when such Bank shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Bank may be required by
the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Bank which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate using such reasonable means of allocation
as such Bank shall determine) equal to the actual costs, if any, incurred by
such Bank during such Interest Period as a result of the applicability of the
foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Bank or Swing Line Bank setting forth such
amount or amounts as shall be necessary to compensate such Bank or Swing Line
Bank as specified in paragraph (a), (b) or (c) above, as the case may be, and
setting forth in reasonable detail an explanation of the basis of requesting
such compensation in accordance with paragraph (a), (b) or (c) above,
including calculations in detail comparable to the detail set forth in
certificates delivered to such Bank in similar circumstances under comparable
provisions of other comparable credit agreements, shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error. The
relevant Borrower shall pay each Bank or Swing Line Bank the amount shown as
due on any such certificate delivered to it within 10 days after its receipt
of the same.
(e) Failure or delay on the part of any Bank or Swing Line Bank to
demand compensation pursuant to this subsection shall not constitute a waiver
of such Bank's or Swing Line Bank's right to demand such compensation;
provided that the Company shall not be required to compensate a Bank or Swing
Line Bank pursuant to this subsection for any increased costs or reductions
incurred more than six months prior to the date that such Bank or Swing Line
Bank, as the case may be, notifies the Company of the event giving rise to
such increased costs or reductions and of such Bank's or Swing Line Bank's
intention to claim compensation therefor; provided further that, if the event
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this subsection, a Bank
shall not be entitled to compensation pursuant to this subsection in respect
of any Competitive Advance Loan if the event that would otherwise entitle it
to such compensation shall have been publicly announced prior to submission
of the Competitive Advance Loan Offer pursuant to which such Loan was made.
(g) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
5.6 Taxes. All payments made by any Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agent and each Bank,
(i) net income taxes, capital taxes, doing business taxes and franchise
taxes imposed on the Administrative Agent or such Bank (including, without
limitation, each Bank in its capacity as a Swing Line Bank), as the case may
be, as a result of a present or former connection between the jurisdiction of
the government or taxing authority imposing such tax and the Administrative
Agent or such Bank (excluding a connection arising solely from the
Administrative Agent or such Bank having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement) or any
political subdivision or taxing authority thereof or therein, (ii) taxes
required to be withheld because of a failure to deliver any certificate
described in this subsection 5.6 for any reason and (iii) any and all
withholding taxes payable with respect to payments under this Agreement made
by the Company or by any Subsidiary Borrower that was organized under the
laws of the United States, other than any such withholding taxes imposed as a
result of any change in or amendment to the laws of such jurisdiction
affecting taxation (including any regulation or ruling proposed or
promulgated by a taxing authority thereof and any treaty provisions) or any
change in the official application, enforcement or interpretation of such
laws, regulations, rulings or treaties or any other action taken by a taxing
authority or a court of competent jurisdiction, which change, amendment,
application, enforcement, interpretation or action becomes effective after
the date hereof (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions and withholdings being hereinafter called "Non-
Excluded Taxes"). If any Non-Excluded Taxes are required to be withheld from
any amounts payable to the Administrative Agent or any Bank hereunder, the
amounts so payable to the Administrative Agent or such Bank shall be
increased to the extent necessary to yield to the Administrative Agent or
such Bank (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in
this Agreement. Whenever any Non-Excluded Taxes are payable by any Borrower,
as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for its own account or for the account of such Bank, as
the case may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. If such Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Administrative Agent
and such Bank for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or such Bank as a result of any
such failure. The agreements in this subsection 5.6(a) shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Bank (including each Assignee) that is not incorporated under
the laws of the United States of America or a state thereof agrees that it
will deliver to the Company and the Administrative Agent concurrently with
the delivery of this Agreement (or, in the case of any Assignee, concurrently
with the delivery of an Assignment and Acceptance) two duly completed copies
of (x) United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, and (y) an Internal Revenue
Service Form W-8BEN or W-9 or successor applicable form, as the case may be.
Each such Bank also agrees to deliver to the Company and the Administrative
Agent two further copies of the said Form W-8BEN or W-8ECI and Form W-8BEN or
W-9, or successor applicable forms or other manner of certification, as the
case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event (including, without limitation,
a change in such Bank's lending office) requiring a change in the most recent
form previously delivered by it to the Company and the Administrative Agent,
and such extensions or renewals thereof as may reasonably be requested by the
Company or the Administrative Agent, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Bank from duly completing and delivering any such form with respect to
it and such Bank so advises the Company and the Administrative Agent. Such
Bank shall certify (x) in the case of a Form W-8BEN or W-8ECI, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) in the case of
a Form W-8BEN or W-9, that it is entitled to an exemption from United States
backup withholding tax.
(ii) Upon the written request of any Borrower, each Bank promptly will
provide to such Borrower and to the Administrative Agent, or file with the
relevant taxing authority (with a copy to the Administrative Agent) such
form, certification or similar documentation (each duly completed, accurate
and signed) as is required by the relevant jurisdiction in order to obtain an
exemption from, or reduced rate of Non-Excluded Taxes to which such Bank or
the Administrative Agent is entitled pursuant to an applicable tax treaty or
the law of the relevant jurisdiction; provided, however, such Bank will not
be required to (x) disclose information which in its reasonable judgment it
deems confidential or proprietary or (y) incur a cost if such cost would, in
its reasonable judgment, be substantial in comparison to the cost of the
Borrower under this subsection 5.6 of such Bank's failure to provide such
form, certification or similar documentation. Such Bank shall certify in the
case of any such form, certification or similar documentation so provided (to
the extent it may accurately and properly do so) that it is entitled to
receive payments under this Agreement without deduction or withholding, or at
a reduced rate of deduction or withholding of Non-Excluded Taxes.
(iii) A Bank shall be required to furnish a form under this paragraph (b)
only if it is entitled to claim an exemption from or a reduced rate of
withholding under applicable law. A Bank that is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law,
promptly upon written request of the applicable Borrower, shall inform the
applicable Borrower in writing.
(c) If any Bank is, in its sole opinion, able to apply for any tax
credit, tax deduction or other reduction in tax (a "Tax Benefit") by reason
of any increased amount paid by the Company under this subsection 5.6, such
Bank will use reasonable efforts to obtain such Tax Benefit and, upon receipt
thereof will pay to the Company such amount, not exceeding the increased
amount paid by the Company, as it considers, in its sole opinion, to be equal
to the net after-tax value to such Bank of the Tax Benefit or such part
thereof allocable to such withholding or deduction, having regard to all of
such Bank's dealings giving rise to similar credits and to the cost of
obtaining the same, less any and all expenses incurred by such Bank in
obtaining such Tax Benefit (including any and all professional fees incurred
therewith); provided, however, that (i) no Bank shall be obligated by this
subsection 5.6 to disclose to the Company any information regarding its tax
affairs or computations, (ii) nothing in this subsection 5.6 shall interfere
with the right of each Bank to arrange its tax affairs as it deems
appropriate and (iii) nothing in this subsection 5.6 shall impose an
obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole
opinion, to do so would (x) impose undue hardships, burdens or expenditures
on such Bank or (y) increase such Bank's exposure to taxation by the
jurisdiction in question.
5.7 Company's Options upon Claims for Increased Costs and Taxes. In the
event that any Affected Bank shall decline to make Loans pursuant to
subsection 5.4 or shall have notified the Company that it is entitled to
claim compensation pursuant to subsection 5.5 or 5.6, the Company may
exercise any one or both of the following options:
(a) The Company may request one or more of the Banks which are not
Affected Banks to take over all (but not part) of any Affected Banks's then
outstanding Loans and to assume all (but not part) of any Affected Bank's
Commitments, if any. If one or more Banks shall so agree in writing
(collectively, the "Assenting Banks"; individually, an "Assenting Bank") with
respect to an Affected Bank, (i) the Commitments, if any, of each Assenting
Bank and the obligations of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the Commitments, if any, and
of the obligations of such Affected Bank under this Agreement and (ii) each
Assenting Bank shall make Loans to the Company, according to such Assenting
Bank's respective Allocable Share, in an aggregate principal amount equal to
the outstanding principal amount of the Loans and of such Affected Bank, on a
date mutually acceptable to the Assenting Banks, such Affected Bank and the
Company. The proceeds of such Loans, together with funds of the Company,
shall be used to prepay the Loans, together with all interest accrued thereon
and all other amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to subsection 5.8 in connection with such
prepayment), and, upon such assumption by the Assenting Bank and prepayment
by the Company, such Affected Bank shall cease to be a "Bank" for purposes of
this Agreement and shall no longer have any obligations or rights hereunder
(other than any obligations or rights which according to this Agreement shall
survive the termination of this Agreement).
(b) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any such Affected Bank hereunder,
and to purchase the outstanding Loans of such Affected Bank and such Affected
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank (unless such Affected Bank
agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Affected Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Affected Bank hereunder
and (ii) any amount which would be payable to such Affected Bank pursuant to
subsection 5.8, and upon such assumption and purchase by the Replacement
Bank, such Replacement Bank, if it is not already a Bank, shall be deemed to
be a "Bank" for purposes of this Agreement and such Affected Bank shall cease
to be a "Bank" for purposes of this Agreement and shall no longer have any
obligations or rights hereunder (other than any obligations or rights which
according to this Agreement shall survive the termination of this Agreement).
5.8 Break Funding Payments. In the event of (a) the payment of any principal
of any Eurocurrency Loan or Committed Rate Loan other than on the last day of
an Interest Period therefor (including as a result of an Event of Default and
as a result of the provisions of subsection 2.11 or 2.12), (b) the conversion
of any Eurocurrency Loan other than on the last day of an Interest Period
therefor,
(c) the failure to borrow, convert, continue or prepay any Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice is permitted to be revocable hereunder and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Advance Loan
after accepting the Competitive Advance Loan Offer to make such Loan, or (e)
the assignment as a result of a request by the Company pursuant to subsection
5.7 of any Eurocurrency Loan other than on the last day of an Interest Period
therefor or of any Competitive Advance Loan, then, in any such event, the
Company shall compensate each Bank for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, the loss to
any Bank attributable to any such event shall be deemed to include an amount
determined by such Bank to be equal to the excess, if any, of (i) the amount
of interest that such Bank would pay for a deposit equal to the principal
amount of such Bank denominated in the Currency of such Loan for the period
from the date of such payment, conversion, failure or assignment to the last
day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest Period
that would have resulted from such borrowing, conversion or continuation) if
the interest rate payable on such deposit were equal to the Eurocurrency Rate
for such Currency for such Interest Period, over (ii) the amount of interest
that such Bank would earn on such principal amount for such period if such
Bank were to invest such principal amount for such period at the interest
rate that would be bid by such Bank (or an affiliate of such Bank) for
deposits denominated in such Currency from other banks in the eurocurrency
market at the commencement of such period. The Company shall also compensate
each relevant Bank for any loss, cost or expense suffered by such Bank as a
result of the conversion, pursuant to subsection 2.11(b), of the Currency in
which a Loan is denominated, or the purchase or sale, pursuant to subsection
2.11(c), of a participating interest in any Loan. A certificate of any Bank
setting forth any amount or amounts that such Bank is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Bank the amount
shown as due on any such certificate within 10 days after receipt thereof.
5.9 Determinations. In making the determinations contemplated by subsection
5.5, 5.6 and 5.8, each Bank may make such estimates, assumptions, allocations
and the like that such Bank in good faith determines to be appropriate. Upon
request of the Company, each Bank shall furnish to the Company, at any time
after demand for payment of an amount under subsection 5.5(a) or 5.8, a
certificate outlining in reasonable detail the computation of any amounts
owing. Any certificate furnished by a Bank shall be binding and conclusive
in the absence of manifest error.
5.10 Change of Lending Office. If an event occurs with respect to any Bank
that makes operable the provisions of subsection 5.4 or entitles such Bank to
make a claim under subsection 5.5 or 5.6, such Bank shall, if requested in
writing by the Company, to the extent not inconsistent with such Bank's
internal policies, use reasonable efforts to (a) designate another office or
offices for the making and maintaining of its Loans or (b) obtain a different
source of funds or credit, as the case may be, the designation or obtaining
of which will eliminate such operability or reduce materially the amount such
Bank is so entitled to claim, provided that such designation or obtaining
would not, in the sole discretion of such Bank, result in such Bank incurring
any costs unless the Company has agreed to reimburse such Bank therefor.
5.11 Company Controls on Exposure; Calculation of Exposure; Prepayment if
Exposure exceeds Commitments. The Company will implement and maintain
internal accounting controls to monitor the borrowings and repayments of
Loans by the Borrowers, with the object of preventing any request for any
Loan that would result in the Exposure of the Banks being in excess of the
Commitments, and of promptly identifying and remedying any circumstance
where, by reason of changes in exchange rates, the aggregate amount of the
Exposure exceeds the Commitments. In the event that at any time the Company
determines that the aggregate amount of the Exposure of the Banks exceeds the
aggregate amount of the Commitments by more than 5%, the Company will, as
soon as practicable but in any event within five Business Days of making such
determination, make or cause to be made such repayments or prepayments of
Loans as shall be necessary to cause the aggregate amount of the Exposure of
the Banks to no longer exceed the Commitments.
(b) The Administrative Agent will calculate the aggregate amount of the
Exposure of the Banks from time to time, and in any event not less frequently
than once during each calendar month. In making such calculations, the
Administrative Agent will rely on the information most recently received by
it from the Swing Line Banks in respect of outstanding Swing Line Loans, and
from Banks in respect of outstanding Competitive Advance Loans. Upon making
each such calculation, the Administrative Agent will inform the Company and
the Banks of the results thereof.
(c) In the event that on any date the Administrative Agent calculates
that the aggregate amount of the Exposure of the Banks exceeds the aggregate
amount of the Commitments by more than 5%. After receipt of any such notice,
the Company will, as soon as practicable but in any event within five
Business Days of receipt of such notice, make or cause to be made such
repayments or prepayments of Loans as shall be necessary to cause the
aggregate amount of the Exposure of the Banks to no longer exceed the
Commitments.
(d) If at any time the Committed Exposure of any Bank exceeds such
Bank's Commitment, upon demand of such Bank, the Company will within one
Business Day prepay Loans in such amounts that after giving effect to such
prepayment the Committed Exposure of such Bank does not exceed its
Commitment.
(e) Any prepayment required to be made pursuant to this subsection 5.11
shall be accompanied by payment of amounts payable, if any, pursuant to
subsection 5.8 in respect of the amount so prepaid.
5.12 Extensions of Termination Date for Commitments. The Company may from
time to time request that the Banks extend by 364 days the Termination Date
then in effect (an "Existing Termination Date") for the Commitments by
delivering a request in writing for such extension to the Administrative
Agent (who shall forward such request to the Banks promptly and in any event
no later than 5 days after receipt thereof) not more than 45 days, and not
less than 30 days, prior to the Existing Termination Date. Each Bank shall
notify the Company, not less than 20 days prior to the Existing Termination
Date, whether such Bank is willing to grant such extension. If the Company
does not so receive from any Bank or the Administrative Agent (on any Bank's
behalf) such written acceptance, then the Company's request shall be deemed
denied with respect to such Bank. In the event that a Bank elects to extend
the Existing Termination Date, then (regardless of whether any other Bank has
elected to so extend) the Termination Date for such Bank shall be extended
until the date which is 364 days following the Existing Termination Date;
provided that in the event that a Default or Event of Default has occurred
and is continuing on the 30th day prior to the Existing Termination Date,
such extension shall not be effective unless the same shall also have been
approved by the Administrative Agent. In the event that the Existing
Termination Date is not extended as to a Bank, then the Commitment of such
Bank automatically shall terminate in whole on the Existing Termination Date
without any further notice or other action by the Company, such Bank or any
other Person and the Company may, at its option (at any time prior to or on
such Existing Termination Date), either:
(i) designate an alternate bank or financial institution (which may but
need not be an existing Bank) to purchase an assignment of such Bank's
Commitment and Loans (which alternate bank or financial institution shall
purchase such assignment prior to such Existing Termination Date), provided
that no Bank shall be obligated to make any such assignment as a result of a
demand by the Company pursuant to this subsection 5.12(a)(i) unless and until
such Bank shall have received one or more payments from either the Company or
one or more assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Loans owing to such Bank, together with
accrued interest thereon to the date of payment of such principal amount and
all other amounts payable to such Bank under this Agreement as of such
date;
(ii) during such time as no Default or Event of Default has occurred and
is continuing, repay such Bank's Loans and all other amounts payable to such
Bank under this Agreement and terminate such Bank's Commitment (without
regard to any requirement contained herein that payments and Commitment
reductions be made ratably among the Banks); or
(iii) with the consent of the Required Banks so long as any Default or
Event of Default has occurred and is continuing, repay such Bank's Loans and
all other amounts payable to such Bank under this Agreement and terminate
such Bank's Commitment (without regard to any requirement contained herein
that payments and Commitment reductions be made ratably among the Banks).
Nothing contained herein shall be deemed to obligate any Bank or the
Administrative Agent to agree to any request made by the Company for the
extension of the Termination Date.
(b) The Company and any Bank that grants an extension of the Termination
Date may agree to extend the maturity of a Competitive Advance Loan made by
such Bank beyond the Existing Maturity Date, provided that such Loan as so
extended may not mature later than 180 days after the date such Loan was
originally made.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Administrative Agent and the Banks to enter into
this Agreement and to make the Loans, the Company and each Subsidiary
Borrower (insofar as the representations and warranties by such Subsidiary
Borrower relate to it) hereby represents and warrants to each Agent, the
Administrative Agent and each Bank that:
6.1 Financial Condition. The audited consolidated balance sheets of the
Company and its consolidated Subsidiaries as at December 31, 1999 and the
related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young LLP, copies of which
have heretofore been furnished to each Bank or will be furnished to each Bank
that has not already received such copies, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The unaudited
consolidating balance sheet of the Company and its consolidated Subsidiaries
by legal entity (with respect to Subsidiaries organized under the laws of the
United States and Canada) and by principal operating group (with respect to
other Subsidiaries) as at September 30, 2000, the related unaudited
consolidating statement of operations and retained earnings for the portion
of the fiscal year ended on September 30, 2000 and the press release of the
Company with respect to its earnings for fiscal year ended December 31, 2000
(dated February 13, 2001), certified by a Responsible Officer, copies of
which have heretofore been furnished to each Bank or will be furnished to
each Bank that has not already received such copies, present fairly the
consolidating financial condition of the Company and its consolidated
Subsidiaries by legal entity (with respect to Subsidiaries organized under
the laws of the United States or Canada) and by principal operating group
(with respect to other Subsidiaries) as at such date, and the consolidating
results of their operations for the fiscal year then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible
Officer, as the case may be, and as disclosed therein). Neither the Company
nor any of its consolidated Subsidiaries had, at the date of the most recent
balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or
unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or referred to in the notes thereto.
During the period from September 30, 2000 to and including the date hereof
there has been no sale, transfer or other disposition by the Company or any
of its consolidated Subsidiaries of any material part of its business or
property and no purchase or other acquisition of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Company and its consolidated
Subsidiaries at September 30, 2000 (except for the acquisitions by the
Company of the Wyle Group of Companies and of Mid Range Open Computing
Alliance (formerly named Merisel Open Computing Alliance, Inc.) and as
otherwise disclosed in writing to the Banks prior to the Closing Date).
6.2 No Change. Since December 31, 1999 there has been no development or
event which has had or could reasonably be expected to have a Material
Adverse Effect.
6.3 Corporate Existence; Compliance with Law. Each of the Company and its
Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate
or other power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure
to be duly qualified or in good standing could not reasonably be expected to
have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations. Each of the
Company and its Subsidiaries has the corporate or other power and authority,
and the legal right, to make, deliver and perform the Credit Documents to
which it is a party and to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of
this Agreement and the execution, delivery and performance of the Credit
Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority
or any other Person is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
the Credit Documents. This Agreement has been, and each other Credit
Document to which the Company or any of its Subsidiaries is a party will be,
duly executed and delivered on behalf of the Company or such Subsidiary, as
the case may be. This Agreement constitutes, and each other Credit Document
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of the Company or any of its Subsidiaries party
thereto enforceable against the Company or such Subsidiary, as the case may
be, in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
6.5 No Legal Bar. The execution, delivery and performance of the Credit
Documents to which the Company or any of its Subsidiaries is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Company or of any of its
Subsidiaries (except for violations of Contractual Obligations which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation,
except for the Liens expressly permitted by subsection 9.3.
6.6 No Material Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
with respect to any of the Credit Documents or any of the transactions
contemplated hereby or thereby.
6.7 No Default. No Default or Event of Default has occurred and is
continuing.
6.8 Ownership of Property; Liens. Each of the Company and its Subsidiaries
has good record and marketable title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, except where the failure to have such
title or such leasehold interest, as the case may be, could not reasonably be
expected to have a Material Adverse Effect, and none of such property is
subject to any Lien except as permitted by subsection 9.3.
6.9 Intellectual Property. Each of the Company and its Subsidiaries owns, or
is licensed to use, all domestic and foreign trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of
its business as currently conducted (the "Intellectual Property") except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect. No claim has been asserted and is pending
or, to the knowledge of the Company, has been threatened by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property which could
reasonably be expected to have a Material Adverse Effect, nor does the
Company know of any valid basis for any such claim. The use of such
Intellectual Property by the Company and its Subsidiaries does not infringe
on the rights of any Person, except for such claims and infringements that,
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.10 [Reserved].
6.11 Taxes. Each of the Company and its consolidated Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Company,
are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property
and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any unfiled tax returns
for taxes, and unpaid taxes, fees and other charges, (a) the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Company or its consolidated Subsidiaries,
as the case may be, or (b) which in each case, individually or in the
aggregate, would not cause the Company and its consolidated Subsidiaries to
have a liability in excess of $5,000,000 or the Dollar Equivalent Amount
thereof); no notice of tax Lien has been filed, and, to the knowledge of the
Company, no claim is being asserted by any taxing authority, with respect to
any such tax, fee or other charge except for claims the amount or validity of
which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided
on the books of the Company or its consolidated Subsidiaries, as the case may
be, and claims for amounts which, in the aggregate, do not exceed $5,000,000.
6.12 Federal Regulations. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
regulations of such Board of Governors. If requested by any Bank or the
Administrative Agent, the Company will furnish to the Administrative Agent
and each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
6.13 ERISA. Each Plan which is intended to be qualified under Section 401(a)
(or 403(a) as appropriate) of the Code and each related trust agreement,
annuity contract or other funding instrument which is intended to be tax-
exempt under Section 501(a) of the Code is so qualified and tax-exempt and
has been so qualified and tax-exempt during the period from its adoption to
date. No event has occurred in connection with which the Company or any
Commonly Controlled Entity or any Plan, directly or indirectly, could
reasonably be expected to be subject to any material liability under ERISA,
the Code or any other law, regulation or governmental order or under any
agreement, instrument, statute, rule of law or regulation pursuant to or
under which the Company or a Subsidiary has agreed to indemnify or is
required to indemnify any person against liability incurred under, or for a
violation or failure to satisfy the requirements of, any such statute,
regulation or order. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of
all accrued benefits under each Single Employer Plan maintained by the
Company or any Commonly Controlled Entity or for which the Company or any
Commonly Controlled Entity has or could have any liability (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Company nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Company nor any Commonly Controlled Entity could reasonably be expected to
become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the unfunded liability of the
Company and each Commonly Controlled Entity for benefits under all unfunded
retirement or severance plans, programs, policies or other arrangements
(including, without limitation, post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA)), whether or not funded does not,
in the aggregate, exceed $5,000,000 (excluding those arrangements set forth
on Schedule 6.13).
6.14 Investment Company Act; Other Regulations. Neither the Company nor any
Subsidiary of the Company is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. Neither the Company nor any Subsidiary of
the Company is subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
6.15 Subsidiaries. On the Closing Date, the only Subsidiaries of the
Company, and the only material partnerships or joint ventures in which the
Company or any Subsidiary has an interest, are those set forth on Schedule
6.15. On the Closing Date, the Company owns the percentage of the issued and
outstanding Capital Stock or other evidences of the ownership of each
Subsidiary, partnership or joint venture set forth on Schedule 6.15 as set
forth on such Schedule. On the Closing Date, except as set forth on Schedule
6.15, no such Subsidiary, partnership or joint venture has issued any
securities convertible into shares of its Capital Stock. The outstanding
stock and securities (or other evidence of ownership) of such Subsidiaries,
partnerships or joint ventures owned by the Company and its Subsidiaries are
owned by the Company and its
Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 9.3.
6.16 Accuracy and Completeness of Information. No document furnished or
statement made in writing to the Banks by the Company in connection with the
negotiation, preparation or execution of this Agreement or any of the other
Credit Documents contains any untrue statement of a material fact, or omits
to state any such material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been
corrected, supplemented or remedied by subsequent documents furnished or
statements made in writing to the Banks. All other written information,
reports and other papers and data with respect to the Company and its
Subsidiaries (other than financial statements), furnished to the Banks by the
Company, or on behalf of the Company, were (a) in the case of those not
prepared for delivery to the Banks, to the Company's knowledge, at the time
the same were so furnished, complete and correct in all material respects for
the purposes for which the same were prepared and (b) in the case of those
prepared for delivery to the Banks, to the Company's knowledge, complete and
correct in all material respects, or have been subsequently supplemented by
other information, reports or other papers or data, to the extent necessary
to give the Banks a true and accurate knowledge of the subject matter in all
material respects, it being understood that financial projections as to
future events are not to be viewed as facts and that actual results may
differ from projected results.
6.17 Purpose of Loans; Commitments. The proceeds of the Loans shall be used
by the Company for working capital purposes in the ordinary course of
business and for general corporate purposes of the Company and, to the extent
permitted hereunder, its Subsidiaries, and the Commitments may be used by the
Company as backup for its commercial paper program.
6.18 Environmental Matters. Except as set forth on Schedule 6.18 or insofar
as there is no reasonable likelihood of a Material Adverse Effect arising
from any combination of facts or circumstances inconsistent with any of the
following:
(a) The facilities and properties owned or operated by the Company or
any of its Subsidiaries (the "Properties") do not contain, and to the
knowledge of the Company or its Subsidiaries, have not previously contained,
any Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any applicable Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no
contamination at, under or to the knowledge of the Company about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties.
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Company or any of its Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Company or any of its Subsidiaries,
Materials of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location which
could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened, under any Environmental Law to which the Company or any
Subsidiary is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other analogous
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
any applicable Environmental Laws.
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Closing Date. The occurrence of the Closing Date, and the
agreement of each Bank to make the initial Loan requested to be made by it on
or after the Closing Date, shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, (ii) for the account of each Bank,
the Company Guarantee executed and delivered by a duly authorized officer of
the Company, with a counterpart or conformed copy for each Bank and (iii)
each Initial Subsidiary Guarantee, executed and delivered by a duly
authorized officer of the Guarantor party thereto, with a counterpart or a
conformed copy for each Bank.
(b) Corporate Proceedings of each Loan Party. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the Board of Directors of each Loan Party (except any Foreign Subsidiary
Borrower) authorizing (i) the execution, delivery and performance of each
Credit Document to which it is a party and (ii) in the case of each Borrower
(except any Foreign Subsidiary Borrower), the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such Loan
Party as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(c) Fees and Expenses. The Administrative Agent shall have received the
fees and expenses to be received on or prior to the Closing Date pursuant to
subsection 5.1(c).
(d) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel to the Company and the Subsidiary Borrowers, substantially in the
form of Exhibit G-1, with such modifications therein as shall be reasonably
requested or approved by the Administrative Agent; and
(ii) the executed legal opinion of Xxxxxx X. Xxxxxxx, general counsel
of the Company, substantially in the form of Exhibit G-2, with such
modifications therein as shall be reasonably requested or approved by the
Administrative Agent. Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement and the other
Credit Documents as the Administrative Agent may reasonably require.
(e) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) which in the reasonable judgment of any
Bank could have a Material Adverse Effect.
(f) Three Year Credit Agreement. The conditions precedent for the
occurrence of the Closing Date under (and as defined in) the Three Year
Credit Agreement shall have been satisfied.
(g) Existing Credit Agreement. Any principal, interest, fees or other
amounts owing or accrued and unpaid under the Existing Credit Agreement to
any Person which is a Bank under (and as defined in) the Existing Credit
Agreement shall have been paid in full to such Person.
(h) Ratings. The Rating in effect on such date by S&P shall not be
lower than BBB and by Xxxxx'x shall not be lower than Baa2.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent.
7.2 Conditions to Each Loan. The agreement of each Bank to make any Loan
requested to be made by it on any date (excluding any Committed Rate Loan
made pursuant to a Notice of Swing Line Refunding, or pursuant to subsection
2.6(c) if the Dollar Equivalent Amount thereof is not increased) is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Company and its Subsidiaries in or pursuant to the
Credit Documents (other than, in respect of each Loan made after the Closing
Date, subsection 6.2) shall be true and correct in all material respects on
and as of such date as if made on and as of such date except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties are true and
correct as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date after giving effect to the Loans requested to be
made on such date.
(c) No Material Adverse Change in Subsidiary Borrowers. If such Loan is
made to a Subsidiary Borrower, no event which has or could reasonably
expected to have a material adverse effect on the ability of such Subsidiary
Borrower to perform its obligations under this Agreement shall have occurred.
(d) Borrowing Certificate. In the case of the first requested borrowing
subsequent to the Closing Date, the Administrative Agent shall have received
with a counterpart for each Bank, a certificate of the Company, dated as of
such date, substantially in the form of Exhibit E, with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, executed by any Responsible Officer of the Company.
(e) Foreign Subsidiary Borrowers. In the case of the first requested
borrowing by each Foreign Subsidiary Borrower, the Company shall deliver to
the Administrative Agent on or prior to such date a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of the Board
of Directors of such Foreign Subsidiary Borrower authorizing (1) the
execution, delivery and performance of each Credit Document to which it is a
party and (2) the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary or other authorized officer of such
Foreign Subsidiary Borrower as of the Closing Date, which certificate shall
be in form and substance satisfactory to the Administrative Agent and shall
state that the resolutions thereby certified have not been amended, modified,
revoked or rescinded. Each borrowing by any Borrower shall constitute a
representation and warranty by the Company and such Borrower as of the date
of such Loan that the conditions contained in this subsection 7.2 have been
satisfied.
SECTION 8. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect,
any Loan remains outstanding and unpaid or any other amount is owing to any
Bank any Agent or the Administrative Agent hereunder, the Company shall and
(except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
8.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Company, a copy of the audited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the end
of such year and the related consolidated statements of operations and
shareholders equity and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young or
other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Banks; provided that the
Company may in lieu of furnishing such financial statements furnish to each
Bank its Form 10-K filed with the Securities and Exchange Commission or any
successor or analogous Governmental Authority for such year;
(b) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Company, the unaudited consolidating balance sheet
of the Company and its consolidated Subsidiaries by legal entity (with
respect to Subsidiaries organized under the laws of the United States and
Canada) and by principal operating group (with respect to other Subsidiaries)
as at the end of such year and the related unaudited consolidating statements
of operations of the Company and its consolidated Subsidiaries by legal
entity (with respect to Subsidiaries organized under the laws of the United
States and Canada) and by principal operating group (with respect to other
Subsidiaries) for such year, setting forth in each case in comparative form
the figures for the previous year, certified pursuant to subsection 8.2(b) by
a Responsible Officer as fairly presenting the consolidating financial
condition and results of operations of the Company and its consolidated
Subsidiaries by legal entity (with respect to Subsidiaries organized under
the laws of the United States and Canada) and by principal operating group
(with respect to other Subsidiaries);
(c) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and shareholders' equity and
of cash flows of the Company and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for such quarter
of the previous year, certified by a Responsible Officer as fairly presenting
in all material respects when considered in relation to the consolidated
financial statements of the Company and its consolidated Subsidiaries
(subject to normal year-end audit adjustments); provided that the Company may
in lieu of furnishing such unaudited consolidated balance sheet furnish to
each Bank its Form 10-Q filed with the Securities and Exchange Commission or
any successor or analogous Governmental Authority for the relevant quarterly
period; and
(d) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Company, the unaudited consolidating balance sheet of the Company and its
consolidated Subsidiaries by legal entity (with respect to Subsidiaries
organized under the laws of the United States and Canada) and by principal
operating group (with respect to other Subsidiaries) as at the end of such
quarter and the related unaudited consolidating statements of operations of
the Company and its consolidated Subsidiaries by legal entity (with respect
to Subsidiaries organized under the laws of the United States and Canada) and
by principal operating group (with respect to other Subsidiaries) for such
quarter and the portion of the fiscal year through the end of such quarter,
in the case of the unaudited consolidating balance sheet setting forth in
comparative form the figures for the previous year (but not the corresponding
figures for such quarter of the previous year) and in the case of the
statements of operations setting forth in comparative form the figures for
such quarter of the previous year, certified by a Responsible Officer as
fairly presenting the consolidating financial condition and results of
operations of the Company and its consolidated Subsidiaries by legal entity
(with respect to Subsidiaries organized under the laws of the United States
and Canada) and by principal operating group (with respect to other
Subsidiaries) (subject to normal year-end audit adjustments); the financial
statements to be furnished pursuant to this subsection 8.1 shall fairly
present the consolidated (or consolidating by legal entity or principal
operating group, as appropriate) financial position and results of operations
of the Company and its consolidated Subsidiaries in accordance with GAAP
(subject, in the case of subsections 8.1(c) and (d), to normal year-end audit
adjustments and the absence of complete footnotes) applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or Responsible Officer, as the case may be, and
disclosed therein).
8.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements referred
to in subsection 8.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 8.1(a) and 8.1(b), a certificate of a Responsible Officer
substantially in the form of Exhibit H;
(c) concurrently with the delivery of the financial statements referred
to in subsection 8.1(c), a certificate of a Responsible Officer (i) stating
that, to the best of such Responsible Officer's knowledge, the Company has
observed and performed all of its covenants and other agreements contained in
this Agreement and the other Credit Documents to which it is a party to be
observed or performed by it, (ii) that such Responsible Officer has obtained
no knowledge of any Default or Event of Default except as specified therein
and (iii) setting forth calculations supporting compliance with subsections
9.1(a), (b) and (c) and 9.2;
(d) as soon as delivered, a copy of the letter, addressed to the
Company, of the certified public accountants who prepared the financial
statements referred to in subsection 8.1(a) for such fiscal year and
otherwise referred to as a "management letter";
(e) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders generally,
and within five days after the same are filed, copies of all financial
statements and reports which the Company or any of its Subsidiaries may make
to, or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(f) concurrently with the delivery of the financial statements referred
to in subsections 8.1(a) and 8.1(c), a certificate of a Responsible Officer
setting forth the name of each Foreign Subsidiary Borrower and each
outstanding Swing Line Loan and Competitive Advance Loan made to the Foreign
Subsidiary Borrowers as of the date of such financial statements; and
(g) promptly, such additional documents, instruments, legal opinions or
financial and other information as the Administrative Agent or any Bank may
from time to time reasonably request.
8.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including, without limitation, all
obligations in respect of taxes, except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be, or where
the failure to pay, discharge or otherwise satisfy could not reasonably be
expected to have a Material Adverse Effect.
8.4 Conduct of Business and Maintenance of Existence. Continue to engage in
business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 9.4; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition, except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against
at least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business; and
furnish to each Bank, upon written request, full information as to the
insurance carried.
8.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which the entries are, in all material
respects, full, true and correct in conformity with sound business practice
and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and, upon reasonable notice under
the circumstances, permit representatives of the Administrative Agent to
visit and inspect any of its properties and examine and make abstracts from
any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants.
8.7 Notices. Promptly, after the Company becomes aware thereof, give notice
to the Administrative Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation
of the Company or any of its Subsidiaries or (ii) litigation, investigation
or proceeding which may exist at any time between the Company or any of its
Subsidiaries and any Governmental Authority, which in either case of clauses
(i) or (ii), if not cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material Adverse Effect or cause a
Default or an Event of Default;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries (i) in which the amount involved is $5,000,000 or more and not
covered by insurance or (ii) in which injunctive or similar relief is sought
which could reasonably be expected to have a Material Adverse Effect;
(d) the following events: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Company or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the terminating (other than a standard termination under Section
4041(b) of ERISA), Reorganization or Insolvency of, any Plan; and (e) any
change, development or event involving a prospective change, which has had or
could reasonably be expected to have a Material Adverse Effect. Each notice
pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
8.8 Environmental Laws. Comply with, and take all reasonable efforts to
ensure compliance by all tenants and subtenants, if any, in all material
respects with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and undertake all reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect.
8.9 Additional Subsidiary Guarantees
(a) In the event that any Domestic Subsidiary which is not a Guarantor
shall account for more than 3% of Total Assets at any date, take all actions
necessary to cause such Domestic Subsidiary to execute and deliver a
Subsidiary Guarantee, within 60 days of the occurrence of such event,
provided that in the event that Domestic Subsidiaries which are not
Guarantors shall account for more than 8% of Total Assets at any date, the
Company shall take all actions necessary to cause a sufficient number of such
Domestic Subsidiaries to execute and deliver a Subsidiary Guarantee such
that, within 60 days of the occurrence of such event, Domestic Subsidiaries
which are not Guarantors shall not account for more than 8% of Total Assets.
8.10 Foreign Subsidiary Borrowers. Within 45 days after the Closing Date,
the Company shall deliver to the Administrative Agent an executed Foreign
Subsidiary Opinion of counsel to each Foreign Subsidiary Borrower that is a
party to this Agreement on the Closing Date if the aggregate Exposure of such
Subsidiary owing to all Banks as of the Closing Date exceeds $20,000,000.
SECTION 9. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in effect,
any Loan remains outstanding and unpaid or any other amount is owing to any
Bank or the Administrative Agent hereunder:
9.1 Financial Condition Covenants. The Company shall not:
(a) Maintenance of Indebtedness. Permit Consolidated Total Debt at any
time to exceed (a) from the Closing Date through September 30, 2001, an
amount equal to 70.0% of Consolidated Total Capitalization, (b) from October
1, 2001 through December 31, 2001, an amount equal to 67.5% of Consolidated
Total Capitalization, (c) from January 1, 2002 through March 31, 2002, an
amount equal to 65.0% of Consolidated Total Capitalization, (d) from April 1,
2002 through June 30, 2002, an amount equal to 60.0% of Consolidated Total
Capitalization, and (e) thereafter, an amount equal to 57.5% of Consolidated
Total Capitalization.
(b) Maintenance of Net Worth. Permit Consolidated Net Worth at any time
to be less than an amount equal to the sum of 85.0% of Consolidated Net Worth
as of December 31, 2000 plus 50% of cumulative Consolidated Net Income for
the fiscal quarter commencing January 1, 2001 and for each fiscal quarter
thereafter (without subtraction for any fiscal quarter during which
Consolidated Net Income is a negative number).
(c) Interest Coverage. Permit for any period of four consecutive fiscal
quarters at any time the ratio of Adjusted Consolidated EBITDA to
Consolidated Cash Interest Expense to be less than 3.0 to 1.0.
9.2 Limitation on Indebtedness of Domestic Subsidiaries. The Company shall
not permit any of its Domestic Subsidiaries to, and the Domestic Subsidiaries
shall not, directly or indirectly, create, incur, assume or suffer to exist
any Indebtedness, except (a) Indebtedness in an aggregate amount not to
exceed 10% of Consolidated Net Worth, (b) any Indebtedness of Domestic
Subsidiaries pursuant to any of the Credit Documents, (c) any Indebtedness of
the Domestic Subsidiaries pursuant to the Subsidiary Guarantees under (and as
defined in) the Three Year Credit Agreement and (d) any Guarantee Obligation
of any Domestic Subsidiary guaranteeing Indebtedness of the Company otherwise
permitted hereunder so long as such Domestic Subsidiary shall have executed
and delivered to the Administrative Agent a Subsidiary Guarantee and such
Subsidiary Guarantee shall be in full force and effect.
9.3 Limitation on Liens. The Company shall not, and shall not permit any of
its Domestic Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its Domestic
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company
or such Domestic Subsidiary;
(f) Liens created in connection with the securitization of Receivables;
provided that (i) the aggregate net proceeds of any such securitization
transaction shall not exceed $750,000,000 and (ii) any such securitization
transaction shall be a Permitted Receivables Securitization;
(g) any Lien existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the
time such Person becomes a Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Company or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved
by the Company or any Subsidiary; provided that (i) such security interests
and the Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement,
(ii) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (iii) such
security interests shall not apply to any other property or assets of the
Company or any Subsidiary; and
(i) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Company and all Domestic Subsidiaries) a Dollar
Equivalent Amount equal to $75,000,000 at any time outstanding.
9.4 Limitation on Fundamental Changes. The Company shall not, and shall not
permit any of its Domestic Subsidiaries to, directly or indirectly, enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all of
its property, business or assets, except:
(i) any Subsidiary may be merged or consolidated with or into the
Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any one or more wholly-owned Domestic
Subsidiaries; and
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or any other wholly owned Domestic Subsidiary.
SECTION 10. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay any principal of any Loan owing
by it when due (whether at the stated maturity, by acceleration or otherwise)
in accordance with the terms hereof; or (ii) any Borrower shall fail to pay
any interest on any Loan or any fee or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Company or
any Subsidiary herein or in any other Credit Document or which is contained
in any certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such other
Credit Document shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Company or any Subsidiary shall default in the observance or
performance of any agreement contained in Section 9 and, with respect to
subsections 9.2 and 9.3, such default shall continue unremedied for a period
of 30 days; or
(d) The Company or any Subsidiary shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Credit Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30 days
after the Company has knowledge thereof; or
(e) Any of the Credit Documents shall cease, for any reason, to be in
full force and effect, or the Company shall so assert in writing; or
(f) The Company or any of its consolidated Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, in either case
with an outstanding principal amount in excess of a Dollar Equivalent Amount
equal to $50,000,000 when due beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(g) (i) Any Borrower, or any Subsidiary that, directly or indirectly,
accounts for more than 5% of Total Assets, at any date shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Borrower or any such Subsidiary shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Borrower or any such Subsidiary any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against any Borrower or any such Subsidiary
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the Company
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Banks,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions,
if any, could reasonably be expected to subject the Company to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
Company; or
(i) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of a Dollar Equivalent Amount equal
to $25,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(j) The Company Guarantee or any Subsidiary Guarantee shall cease, for
any reason, to be in full force and effect or any Guarantor party thereto
shall so assert; or
(k) A Change in Control shall occur; then, and in any such event, (A) if
such event is an Event of Default specified in clause (i) or (ii) of
paragraph (g) above with respect to the Company, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement shall
become immediately due and payable and (B) if such event is any other Event
of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, by notice to
the Company declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTS
11.1 Appointment. Each Bank hereby irrevocably designates and appoints Chase
as the Administrative Agent of such Bank under this Agreement and the other
Credit Documents, and each such Bank irrevocably authorizes Chase, as the
Administrative Agent for such Bank, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
11.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
11.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Company or
any officer thereof contained in this Agreement or any other Credit Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the Company
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of the Company.
11.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of
the Required Banks or all of the Banks, as may be required hereunder, as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected from liability to
the Banks in acting, or in refraining from acting, under this Agreement and
the other Credit Documents in accordance with a request of the Required Banks
or all of the Banks, as may be required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and their respective successors and assigns.
11.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks or all of the Banks, as may be
required hereunder; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable
in the best interests of the Banks.
11.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its Loans hereunder and enter into this Agreement and the other Credit
Documents to which it is or will be a party. Each Bank also represents that
it will, independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company and its Subsidiaries which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7 Indemnification. The Banks agree to indemnify the Administrative Agent
in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according
to their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
Commitment Percentages immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time following
the payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent or any in any way relating to or arising out of this
Agreement, any of the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; provided that no Bank shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
11.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Company and any of its
Subsidiaries as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Credit Documents. With respect to its
Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Credit Documents as any
Bank and may exercise the same as though it were not the Administrative
Agent, and the terms "Bank" and "Banks" shall include the Administrative
Agent in its individual capacity.
11.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Banks; provided that any
such resignation shall not be effective until a successor agent has been
appointed and approved in accordance with this subsection 11.9, and such
successor agent has accepted its appointment. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other
Credit Documents, then the Required Banks shall appoint from among the Banks
a successor administrative agent for the Banks, which successor agent shall
be approved by the Company (which approval shall not be unreasonably withheld
or delayed or be required during the existence of an Event of Default),
whereupon such successor administrative agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
11.10 The Arranger, Syndication Agent and Documentation Agent. Each Bank
acknowledges that none of the Arranger, the Syndication Agent and the
Documentation Agent, in such respective capacity, shall have any duties or
responsibilities, or shall incur any liabilities, under this Agreement or the
other Credit Documents.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Banks may, or, with the written consent of the Required Banks, the
Administrative Agent may, from time to time, (i) enter into with the Loan
Parties party thereto written amendments, supplements or modifications to
this Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder
or (ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend the scheduled date of maturity of any Loan or
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the aggregate amount or
extend the expiration date of any Bank's Commitment, in each case without the
consent of each Bank directly affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentage specified in
the definition of Required Banks, or consent to the assignment or transfer by
the Company of any of its rights and obligations under this Agreement and the
other Credit Documents or amend, modify or waive subsection 5.3(a) or
12.6(a), or release any Subsidiary from its Subsidiary Guarantee or release
the Company from the Company Guarantee, in each case without the written
consent of all the Banks, or (iii) amend, modify or waive any provision of
Section 11 without the written consent of the then Administrative Agent. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Banks and shall be binding upon the Company, the
Subsidiary Borrowers, the Banks, the Agents, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Company, the
Banks and the Administrative Agent shall be restored to their former position
and rights hereunder and under any other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II, III and IV may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the Company as
additional Subsidiary Borrowers upon (A) execution and delivery by the
Company, any such Subsidiary Borrower and the Administrative Agent, of a
Joinder Agreement providing for any such Subsidiary to become a Subsidiary
Borrower, and (B) delivery to the Administrative Agent of (1) if reasonably
requested by the Administrative Agent, a legal opinion in respect of such
additional Subsidiary Borrower and (2) such other documents with respect
thereto as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Subsidiary Borrower upon (A) execution and delivery by the Company of a
Schedule Amendment providing for such amendment and (b) repayment in full of
all outstanding Loans of such Subsidiary Borrower.
(iii) Schedule III will be amended to designate other Banks as
additional or replacement Swing Line Banks upon execution and delivery by the
Company, the Administrative Agent and such additional or replacement Swing
Line Bank of a Schedule Amendment providing for such amendment. In the case
of any replacement of a Swing Line Bank pursuant to a Schedule Amendment, the
existing Swing Line Bank replaced pursuant thereto shall cease to be a Swing
Line Bank upon the effectiveness of such Schedule Amendment and the repayment
of all Swing Line Loans owing to such replaced Swing Line Bank.
(iv) Schedule III will be amended to change administrative information
(including the Swing Line Rate definition) with respect to Swing Line Banks,
upon execution and delivery by the Company, the Administrative Agent and such
Swing Line Bank of a Schedule Amendment providing for such amendment.
(v) Schedule IV will be amended to change administrative information
contained therein (other than any interest rate definition, Funding Time,
Payment Time or notice time contained therein), upon execution and delivery
by the Company and the Administrative Agent of a Schedule Amendment providing
for such amendment.
(vi) Schedule IV will be amended to conform any Funding Time, Payment
Time or notice time contained therein to then-prevailing market practices,
upon execution and delivery by the Company, the Required Banks and the
Administrative Agent of a Schedule Amendment providing for such amendment.
(vii) Schedule IV will be amended to change any interest rate definition
contained therein, upon execution and delivery by the Company, all the Banks
and the Administrative Agent of a Schedule Amendment providing for such
amendment.
(c) The Administrative Agent shall give prompt notice to each Bank of
any amendment effect pursuant to subsection 12.1(b).
(d) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any Bank (an "Objecting Bank")
that refuses to consent to an amendment, supplement or waiver that both
requires the consent of all the Banks in order to become effective and is
acceptable to one or more other Banks constituting the Required Banks, and to
purchase the outstanding Loans of such Objecting Bank and such Objecting
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Objecting Bank (unless such Objecting Bank
agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Objecting Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Objecting Bank hereunder
and (ii) any amount which would be payable to such Objecting Bank pursuant to
subsection 5.8 (assuming that all Loans of such Objecting Bank were prepaid
on the date of such assumption), and upon such assumption and purchase by the
Replacement Bank, such Replacement Bank, if it is not already a Bank, shall
be deemed to be a "Bank" for purposes of this Agreement and such Objecting
Bank shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations or rights hereunder (other than any obligations
or rights which according to this Agreement shall survive the termination of
this Agreement).
12.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy),
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand, or five days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company, the Subsidiary
Borrowers and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Loans:
The Company:
Arrow Electronics, Inc.
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Chase Loan and Agency Services Group
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Subsidiary Borrowers:
c/o Arrow Electronics, Inc
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
; provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Swing Line Outstandings, Notice of Swing Line
Refunding, Notice of Prepayment, or any notice pursuant to subsections 2.4 or
2.5 shall not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Bank, any right,
remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other
Credit Documents and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent and the Arranger for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent and the Arranger, (b) to pay or reimburse each Bank and
the Administrative Agent for all its reasonable costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents upon the
occurrence of an Event of Default, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent and to the several
Banks, and (c) to pay, indemnify, and hold each Bank, each Agent, the
Arranger and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting
from any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the other Credit
Documents and any such other documents, and (d) to pay, indemnify, and hold
each Bank, each Agent, the Arranger and the Administrative Agent (and their
respective directors, officers, employees and agents) (collectively, the
"indemnified person") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Credit Documents and any such
other documents, including, without limitation, any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with
or liability under, any Environmental Law applicable to the operations of the
Company, any of its Subsidiaries or any of the Properties (it being
understood that costs and expenses incurred in connection with the
enforcement or preservation of rights under this Agreement and the other
Credit Documents shall be paid or reimbursed in accordance with clause (b)
above rather than this clause (d)) (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Company
shall have no obligation hereunder to any indemnified person with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of such indemnified person or (ii) legal proceedings commenced
against the Administrative Agent or any Bank by any security holder or
creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such. Any payments
required to be made by the Company under this subsection 12.5 shall be made
within 30 days of the demand therefor. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. This Agreement
shall be binding upon and inure to the benefit of the Company, the Subsidiary
Borrowers, the Banks, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that no Borrower
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Bank.
(b) Any Bank may, without the consent of the Borrowers, in accordance
with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Bank, any Commitment of such Bank or any
other interest of such Bank hereunder and under the other Credit Documents.
In the event of any such sale by a Bank of a participating interest to a
Participant, such Bank's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Bank shall remain
solely responsible for the performance thereof, such Bank shall remain the
holder of any such Loan for all purposes under this Agreement and the other
Credit Documents, and the Company, the Subsidiary Borrowers and the
Administrative Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement and the other Credit Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or
waiver of any provision of any Credit Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. Each of the Company and the Subsidiary Borrowers agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Banks the proceeds thereof as provided in subsection 12.7(a) as fully as if
it were a Bank hereunder. Each of the Company and the Subsidiary Borrowers
also agrees that each Participant shall be entitled to the benefits of
subsections 5.5, 5.6 or 5.8 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Bank;
provided that, in the case of subsection 5.6, such Participant shall have
complied with the requirements of said subsection and provided, further, that
no Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Bank would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in accordance with applicable law, at any time and
from time to time assign to any Bank or any affiliate thereof or, with the
consent of the Administrative Agent and the Company (which shall not be
unreasonably withheld or delayed and provided that the consent of the Company
shall not be required for such assignment if a Default or Event of Default
pursuant to subsection 10(a) or 10(g) has occurred and is continuing at the
time of such assignment), to an additional bank, financial institution or
other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement and the Loans pursuant to an Assignment and Acceptance,
executed by such Assignee, such assigning Bank and any other Person whose
consent is required pursuant to this paragraph, and delivered to the
Administrative Agent for its acceptance and recording in the Register;
provided that, unless otherwise agreed by the Company and the Administrative
Agent, no such assignment to an Assignee (other than any Bank or any
affiliate thereof) shall be in an aggregate principal amount of less than
$5,000,000, except in the case of an assignment of all of a Bank's interests
under this Agreement. For purposes of the proviso contained in the preceding
sentence, the amount described therein shall be aggregated in respect of each
Bank and its affiliates, if any. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Bank hereunder with a Commitment and/or Loans
as set forth therein, and (y) the assigning Bank thereunder shall, to the
extent provided in 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 Bank's
rights and obligations under this Agreement, such assigning Bank shall cease
to be a party hereto but shall continue to be entitled to the provisions
hereunder which survive termination).
(d) The Administrative Agent shall maintain, on behalf of the Borrowers,
at its address referred to in subsection 12.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Banks and the Commitment of,
and principal amount of the Loans owing hereunder to, each Bank from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any assignment of
any Loan shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank, an Assignee and any other Person whose consent is required
pursuant to Section 12.6(c), together with payment to the Administrative
Agent of a registration and processing fee of $3,500, the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on
the effective date determined pursuant thereto record the information
contained therein in the Register.
(f) The Company authorizes each Bank to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Company and
its Affiliates which has been delivered to such Bank by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Bank
by or on behalf of the Company in connection with such Bank's credit
evaluation of the Company and its Affiliates prior to becoming a party to
this Agreement so long as each such prospective Transferee shall execute a
confidentiality agreement containing provisions substantially similar to the
provisions contained in the next succeeding sentences of this paragraph (f).
The Administrative Agent and each Bank shall hold nonpublic information
obtained pursuant to the requirements of this Agreement other than
information (i) that is, or generally becomes, available to the public, (ii)
that was or becomes available to the Administrative Agent or any Bank on a
nonconfidential basis or (iii) that becomes available to the Administrative
Agent or any Bank from a Person or other source that is not, to the best
knowledge of the Administrative Agent or such Bank, as the case may be,
otherwise bound by a confidentiality obligation to the Company, in accordance
with its customary procedures for treatment of confidential information and
in accordance with safe and sound banking practices and in any event, may
make disclosure reasonably required by any Governmental Authority or
representative thereof pursuant to subpoena or other legal process or as
otherwise required by law, order or regulation. Unless specifically
prohibited by applicable law, regulation, rule or court order, the
Administrative Agent and each Bank shall notify the Company of any request by
any Governmental Authority or representative thereof (other than any such
request in connection with an examination of the financial condition of the
Administrative Agent or such Bank by such Governmental Authority) for
disclosure of such information by the Administrative Agent or such Bank so
that any of them may seek an appropriate protective order. Except as may be
required by an order of a court of competent jurisdiction and to the extent
set forth therein, neither the Administrative Agent nor any Bank shall be
obligated or required to return any materials furnished by the Company.
Nothing in this paragraph (f) shall prohibit the Administrative Agent or any
Bank from disclosing nonpublic information to its examiners, regulators and
professional advisors.
(g) Nothing herein shall prohibit any Bank from pledging or assigning
any Loan to any Federal Reserve Bank in accordance with applicable law or
require any Bank to obtain the consent of any Loan Party in order to pledge
or assign any Loan to any Federal Reserve Bank in accordance with applicable
law.
12.7 Adjustments; Set-off. If any Bank (a "benefitted Bank") shall at any
time receive any payment of all or part of its Loans then due and owing to
it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 10(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any
other Bank, if any, in respect of such other Bank's Loans then due and owing
to it, or interest thereon, such benefitted Bank shall purchase for cash from
the other Banks a participating interest in such portion of each such other
Bank's Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Bank, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. Each of the Company and the Subsidiary Borrowers agrees that each
Bank so purchasing a portion of another Bank's Loan may exercise all rights
of payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law,
each Bank shall have the right, without prior notice to the Company or any
Subsidiary Borrower, any such notice being expressly waived by the Company
and the Subsidiary Borrowers to the extent permitted by applicable law, upon
any amount becoming due and payable by any Borrower hereunder or under this
Agreement or the other Credit Documents (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Bank or
any branch or agency thereof to or for the credit or the account of such
Borrower, as the case may be. Each Bank agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
12.8 Power of Attorney. Each Subsidiary Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact with
regard to matters relating to this Agreement, the Applications and each other
Credit Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agent and each Bank has
executed and delivered this Agreement and each other Credit Document to which
it is a party, and has performed its obligations under this Agreement and
each other Credit Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection 12.8.
The power of attorney granted by each Subsidiary Borrower hereunder is
coupled with an interest.
12.9 . Judgment. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of any Borrower in respect of any sum due to any Bank
or the Administrative Agent hereunder shall, notwithstanding any judgment in
a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement or
the other Credit Documents (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by such Bank or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
the Judgment Currency such Bank or the Administrative Agent (as the case may
be) may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency
so purchased is less than the sum originally due to such Bank or the
Administrative Agent (as the case may be) in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or the Administrative Agent (as the case may
be) against such loss, and if the amount of the Agreement Currency so
purchased exceeds the sum originally due to any Bank or the Administrative
Agent (as the case may be), such Bank or the Administrative Agent (as the
case may be) agrees to remit to such Borrower such excess.
12.10 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agent.
12.11 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.12 Integration. This Agreement and the other Credit Documents represent
the agreement of the Company, the Subsidiary Borrowers, the Administrative
Agent and the Banks with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the
Administrative Agent or any Bank relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
12.13 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.14 Submission To Jurisdiction; Waivers. Each of the Company and the
Subsidiary Borrowers hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which
it is a party, or for recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Company at its
address set forth in subsection 12.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to
xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints the Company as
its agent for service of process in any proceeding referred to in subsection
12.14(a) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of the Company at its
address for notice set forth in subsection 12.2.
12.15 Acknowledgments. Each of the Company and the Subsidiary Borrowers
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Administrative Agent or any Bank has any fiduciary
relationship with or duty to the Company and the Subsidiary Borrowers arising
out of or in connection with this Agreement or any of the other Credit
Documents, and the relationship between the Administrative Agent and the
Banks, on one hand, and the Company and the Subsidiary Borrowers, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Banks or among the Company and the Subsidiary Borrowers and the Banks.
12.16 WAIVERS OF JURY TRIAL. THE COMPANY, THE SUBSIDIARY BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ARROW ELECTRONICS, INC.
By:
Name:
Title:
GATES/ARROW DISTRIBUTING, INC.
By:
Name:
Title:
MID RANGE OPEN COMPUTING ALLIANCE, INC.
By:
Name:
Title:
XXXXXXX ELECTRONIC GMBH
By:
Name:
Title:
ARROW ELECTRONIQUE S.A.
By:
Name:
Title:
TEKELEC EUROPE S.A.
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Administrative Agent and as a Bank
By:
Name:
Title:
BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
By:
Name:
Title:
FLEET NATIONAL BANK, as Documentation Agent and as a Bank
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Bank
By:
Name:
Title:
PARIBAS, as a Bank
By:
Name:
Title:
By:
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB, as a Bank
By:
Name:
Title:
By:
Name:
Title:
HSBC BANK USA, as a Bank
By:
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
BANCA POPOLARE DI MILANO, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By:
Name:
Title:
By:
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By:
Name:
Title:
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
SUNTRUST BANK
By:
Name:
Title:
DEUTSCHE BANK AG
By:
Name:
Title:
By:
Name:
Title:
FIRST UNION NATIONAL BANK
By:
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.P.A., NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
Name:
Title:
UNICREDITO ITALIANO
By:
Name:
Title:
STATE BANK OF INDIA
By:
Name:
Title:
