CONFORMED COPY
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CREDIT AGREEMENT
dated as of
August 30, 1996
among
The Dun & Bradstreet Corporation
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
$1,000,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms................................... 1
SECTION 1.02. Classification of Loans and
Borrowings................................... 22
SECTION 1.03. Terms Generally ................................ 23
SECTION 1.04. Accounting Terms; GAAP.......................... 23
SECTION 1.05. Exchange Rates.................................. 24
ARTICLE II
The Credits
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SECTION 2.01. Commitments..................................... 24
SECTION 2.02. Loans and Borrowings............................ 25
SECTION 2.03. Requests for Revolving Borrowings............... 26
SECTION 2.04. Competitive Bid Procedure....................... 27
SECTION 2.05. Swingline Loans................................. 30
SECTION 2.06. Funding of Borrowings........................... 32
SECTION 2.07. Interest Elections.............................. 33
SECTION 2.08. Termination and Reduction of
Commitments.................................. 35
SECTION 2.09. Repayment of Loans; Evidence of
Debt......................................... 36
SECTION 2.10. Prepayment of Loans............................. 37
SECTION 2.11. Fees............................................ 38
SECTION 2.12. Interest........................................ 39
SECTION 2.13. Alternate Rate of Interest...................... 40
SECTION 2.14. Increased Costs................................. 41
SECTION 2.15. Break Funding Payments.......................... 43
SECTION 2.16. Taxes........................................... 44
SECTION 2.17. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs............... 46
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders....................................... 48
SECTION 2.19. Borrowing Subsidiaries.......................... 49
SECTION 2.20. Adjustment of Applicable Rate................... 49
2
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01. Organization; Powers............................ 50
SECTION 3.02. Authorization; Enforceability................... 50
SECTION 3.03. Governmental Approvals; No Conflicts............ 51
SECTION 3.04. Financial Condition; No Material
Adverse Change............................... 51
SECTION 3.05. Properties...................................... 52
SECTION 3.06. Litigation and Environmental Matters............ 52
SECTION 3.07. Compliance with Laws and Agreements............. 53
SECTION 3.08. Investment and Holding Company Status........... 53
SECTION 3.09. Taxes........................................... 53
SECTION 3.10. ERISA........................................... 53
SECTION 3.11. Disclosure...................................... 54
SECTION 3.12. Subsidiaries.................................... 54
SECTION 3.13. Solvency........................................ 54
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date.................................. 55
SECTION 4.02. Each Credit Event............................... 56
SECTION 4.03. Each Borrowing Subsidiary Credit
Event........................................ 57
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other
Information.................................. 58
SECTION 5.02. Notices of Material Events...................... 60
SECTION 5.03. Existence; Conduct of Business.................. 61
SECTION 5.04 Payment of Obligations.......................... 61
SECTION 5.05. Maintenance of Properties; Insurance............ 61
SECTION 5.06. Books and Records; Inspection Rights............ 61
SECTION 5.07. Compliance with Laws............................ 62
SECTION 5.08. Use of Proceeds................................. 62
3
ARTICLE VI
Negative Covenants
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SECTION 6.01. Liens........................................... 62
SECTION 6.02. Fundamental Changes............................. 64
SECTION 6.03. Transactions with Affiliates.................... 65
SECTION 6.04. Sale and Lease-Back Transactions................ 65
SECTION 6.05. Total Debt to EBITDA Ratio...................... 66
SECTION 6.06. Interest Coverage Ratio......................... 66
SECTION 6.07. Borrowing Subsidiaries.......................... 66
ARTICLE VII
Events of Default......................... 66
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ARTICLE VIII
The Administrative Agent........................ 70
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ARTICLE IX
Guarantee....................................... 73
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ARTICLE X
Miscellaneous
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SECTION 10.01. Notices......................................... 75
SECTION 10.02. Waivers; Amendments............................. 76
SECTION 10.03. Expenses; Indemnity; Damage Waiver.............. 77
SECTION 10.04. Successors and Assigns.......................... 78
SECTION 10.05. Survival........................................ 81
SECTION 10.06. Counterparts; Integration;
Effectiveness................................ 82
SECTION 10.07. Severability.................................... 82
SECTION 10.08. Right of Setoff................................. 82
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process........................ 83
SECTION 10.10. WAIVER OF JURY TRIAL............................ 84
SECTION 10.11. Headings........................................ 84
SECTION 10.12. Confidentiality................................. 84
SECTION 10.13. Interest Rate Limitation........................ 85
SECTION 10.14. Conversion of Currencies........................ 85
4
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Company's Counsel
Exhibit B-2 -- Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit C -- Form of Opinion of Borrowing Subsidiary's
Counsel
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
CREDIT AGREEMENT dated as of August 30, 1996, among THE
DUN & BRADSTREET CORPORATION, the BORROWING SUBSIDIARIES party
hereto, the LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, CITIBANK, N.A., as Syndication Agent,
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement Currency" has the meaning assigned to such term in
Section 10.14.
2
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurocurrency Spread" or "Facility Fee Rate", as the case may
be, based upon the ratings by S&P and Duff & Xxxxxx, respectively, applicable on
such date to the LTD Index Debt or, if no LTD Index Debt is in effect, based
upon the ratings by S&P and Duff & Xxxxxx, respectively, applicable on such date
to the CP Index Debt:
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Eurocurrency Facility Fee
LTD Index Debt Ratings Spread Rate
CP Index Debt Ratings:
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Category 1 .130% .070%
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A or better from S&P and A or
better from Duff &
Xxxxxx/
A-1+ or better from S&P and
D-1+ or better from
Duff & Xxxxxx
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Category 2 .145% .080%
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A- from S&P and A- from
Duff & Xxxxxx/
A-1 from S&P and D-1 from
Duff & Xxxxxx
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Category 3 .160% .090%
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BBB+ from S&P and BBB+ from
Duff & Xxxxxx/
A-1 from S&P or D-1 from
Duff & Xxxxxx
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Category 4 .175% .125%
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BBB or less from S&P and BBB
or less from
Duff & Xxxxxx/
Neither A-1+ or A-1 from S&P
nor D-1+ or D-1
from Duff & Xxxxxx
==================================================================
For purposes of the foregoing, (i) if either S&P or Duff & Xxxxxx
shall not have in effect a rating for the applicable Index Debt (other than by
reason of the circum-
3
stances referred to in the last sentence of this definition), then such rating
agency shall be deemed to have established a rating in Category 4; (ii) if the
ratings established or deemed to have been established by S&P and Duff & Xxxxxx
for the applicable Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two ratings unless one of
the two ratings is two or more Categories lower than the other, in which case
the Applicable Rate shall be based upon the Category next below that of the
higher of the two ratings; and (iii) if the ratings established or deemed to
have been established by S&P and Duff & Xxxxxx for the applicable Index Debt
shall be changed (other than as a result of a change in the rating system of S&P
or Duff & Xxxxxx), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the Applicable
Rate shall apply (other than as described in the immediately succeeding
sentence) during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. Notwithstanding the foregoing, unless and until the initial ratings of
the LTD Index Debt are obtained, the following shall apply (i) until April 1,
1997, the Applicable Rate shall be based upon Category 3, (ii) after April 1,
1997, and until June 30, 1997, the Applicable Rate shall be based upon Category
3, subject to adjustment (retroactive to April 1, 1997) based upon (x) the
initial ratings of the LTD Index Debt if obtained prior to June 30, 1997, or (y)
if such initial ratings are not obtained by June 30, 1997, then the ratings of
the CP Index Debt as of April 1, 1997, and (iii) thereafter, until the initial
ratings of LTD Index Debt are obtained, the Applicable Rate shall be based on
the ratings of CP Index Debt from time to time in effect. If the rating system
of S&P or Duff & Xxxxxx shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in
4
the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and currency,
made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect, (b) a Competitive Loan
or group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Date" means any Business Day specified in a notice
pursuant to Section 2.03, 2.04 or 2.05 as a date on which the relevant Borrower
requests Loans to be made hereunder.
"Borrowing Request" means a request for a Revolving Borrowing in
accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, any Subsidiary of the
Company designated as a Borrowing Subsidiary by the Company pursuant to Section
2.19 that has not ceased to be a Borrowing Subsidiary pursuant to such Section
or Article VII; provided that the Company owns or Controls at least 80% of the
ordinary voting power of such Subsidiary.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit E.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain
5
closed; provided that when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in deposits in the applicable currency in the London interbank market.
"Calculation Date" means the last Business Day of each calendar
month and such other Business Days during such calendar month as may be notified
by the Company to the Administrative Agent, provided that there shall be no more
than three Calculation Dates in any calendar month.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were neither (i) nominated by the board of directors of
the Company nor (ii) appointed by directors so nominated; or (c) the acquisition
of direct or indirect Control of the Company by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
6
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive
Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable.
"Committed Currency" means (a) French Franc, Deutschemark, Japanese
Yen and Pound Sterling and (b) any other Eligible Currency that shall be
designated by the Company in a notice delivered to the Administrative Agent and
has been approved by the Administrative Agent and all the Lenders as a Committed
Currency.
"Company" means The Dun & Bradstreet Corporation, a Delaware
corporation.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids in
accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Competitive
Loans (or the Dollar
7
Equivalent thereof in the case of a Competitive Loan in an Eligible Currency) at
such time.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"CP Index Debt" means unsecured commercial paper of the Company that
is not guaranteed by any other Person or subject to any other credit
enhancement.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Discontinued Companies" means the collective reference to Cognizant
Corporation, ACNielsen Corporation, American Credit Indemnity Company and Dun &
Bradstreet Software Services, Inc.
"dollars" or "$" refers to lawful money of the United States of
America.
"Dollar Equivalent" means, on any date of determination, with
respect to any amount in any Eligible Currency, the equivalent in dollars of
such amount, determined by the Administrative Agent pursuant to Section 1.05(a)
using the Exchange Rate with respect to such Eligible Currency then in effect.
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary
organized under the laws of any jurisdiction in the United States.
"Duff & Xxxxxx" means Duff & Xxxxxx Inc.
"Draft Information Statement" means the Company's Draft Information
Statement, as filed with the Securities and Exchange Commission on July 10,
1996.
8
"EBITDA" means, for any period, the consolidated net income of the
Company and its consolidated Subsidiaries for such period plus, to the extent
deducted in computing such consolidated net income for such period, the sum
(without duplication) of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) extraordinary losses, (e) losses
resulting from the operations of the Discontinued Companies (assuming that
Discontinued Companies owned such operations during such period), but only to
the extent that the operations of the Discontinued Companies were designated as
discontinued operations in the Company's Form 8-K to be filed with the
Securities and Exchange Commission prior to the Spin-Off (the "Form 8-K") and
continue to be designated as discontinued operations in the Company's financial
statements, and (f) the Excluded Charges, minus, to the extent added in
computing such consolidated net income for such period, (i) interest income,
(ii) extraordinary gains and (iii) income resulting from the operations of the
Discontinued Companies (assuming the Discontinued Companies owned such
operations during such period), but only to the extent that the operations of
the Discontinued Companies were designated as discontinued operations in the
Company's Form 8-K and continue to be designated as discontinued operations in
the Company's financial statements.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"Eligible Currency" means at any time any Committed Currency or any
other currency (other than dollars) that is freely tradeable and exchangeable
into dollars in the London market and for which an Exchange Rate can be
determined by reference to the Reuters World currency page or another publicly
available service for displaying exchange rates.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
9
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be,
10
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means, on any day, with respect to any Eligible
Currency, the rate at which such Eligible Currency may be exchanged into dollars
(and, for purposes of clause (e) of Section 2.07 and clause (i) of Section 2.13,
the rate at which dollars may be exchanged into such Eligible Currency), as set
forth at approximately 11:00 a.m., London time, on such date on the Reuters
World currency page for such Eligible Currency. In the event that such rate does
not appear on any Reuters World currency page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the
Company, or, in the absence of such agreement, such Exchange Rate shall instead
be the arithmetic average of the spot rates of exchange of the Administrative
Agent in the market where its foreign currency exchange operations in respect of
such Eligible Currency are then being conducted, at or about 10:00 a.m., local
time, on such date for the purchase of dollars (or such Eligible Currency, as
the case may be) for delivery two Business Days later; provided that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
"Excluded Charges" means the following charges recorded in
connection with the Spin-Off or the reorganization of the Company: (a)
$206,000,000 recorded in the last quarter of 1995 in connection with the
Spin-Off; (b) $221,000,000 recorded in the second quarter of 1996 in connection
with the sale of certain Subsidiaries and (c) an additional $190,000,000 to be
recorded in connection with the Spin-Off prior to the date thereof.
11
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of any Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income (including branch profits or similar taxes)
imposed as a result of a present or former connection between such Lender or the
Administrative Agent and the Governmental Authority imposing such tax (other
than any such connection arising solely from such Lender or the Administrative
Agent having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by a Borrower under Section
2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender to the extent they are in effect and would apply as of the date such
Foreign Lender becomes a party to this Agreement or designates a new lending
office (including withholding taxes that would be imposed on payments made by a
Borrowing Subsidiary the Relevant Jurisdiction with respect to which is the
United Kingdom, regardless of whether the Company has designated such a
Borrowing Subsidiary) (other than with respect to any Foreign Lender that is a
Foreign Lender with respect to any Borrowing Subsidiary that is designated after
the date of this Agreement (other than a Borrowing Subsidiary the Relevant
Jurisdiction with respect to which is United Kingdom)), or that is attributable
to such Foreign Lender's failure to comply with Section 2.16(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding
tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
12
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
"Fixed Rate" means, with respect to any Competitive Loan (other than
a Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means, with respect to any Loan, any Lender making
such Loan that is organized under the laws of a jurisdiction other than the
Relevant Jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
13
endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall (i) include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor and
(ii) not include any
14
obligations insured by American Credit Indemnity Company in the ordinary course
of its credit insurance business.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means LTD Index Debt or CP Index Debt.
"Interest Coverage Ratio" means, for any period, the ratio of (a)
EBITDA for such period to (b) Interest Expense for such period.
"Interest Election Request" means a request by the relevant Borrower
to convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the interest expense of
the Company and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP including and (i) the amortization of
debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to Hedging
Agreements) payable in connection with the incurrence of Indebtedness to the
extent included in interest expense in accordance with GAAP, (iii) the portion
of any rents payable under capital leases allocable to interest expense in
accordance with GAAP and (iv) minority interest financing expense of D&B
Investors, L.P. and Duns Licensing Associates, L.P.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that
15
occurs at intervals of 90 days' duration after the first day of such Interest
Period, and any other dates that are specified in the applicable Competitive Bid
Request as Interest Payment Dates with respect to such Borrowing and (d) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than one day or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Judgment Currency" has the meaning assigned to such term in Section
10.14.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate appearing on Page 3750 (or, in the case of a
Multicurrency
16
Borrowing, the rate appearing on the Page for the applicable Eligible Currency)
of the Telerate Service (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits (or, in the
case of a Multicurrency Borrowing, deposits in the applicable Eligible Currency)
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits (or the applicable Eligible Currency) with a maturity comparable
to such Interest Period. In the event that such rate is not available at such
time for any reason, then the "LIBO Rate" with respect to such Eurocurrency
Borrowing for such Interest Period shall be the rate at which the Administrative
Agent is offered dollar deposits of $5,000,000 (or, in the case of a
Multicurrency Borrowing, deposits in the applicable Eligible Currency in an
amount the Dollar Equivalent of which is approximately equal to $5,000,000) and
for a maturity comparable to such Interest Period in immediately available funds
in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities (other than
securities issued by the Company or any of its Subsidiaries), any purchase
option, call or similar right of a third party with respect to such securities.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"LTD Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
17
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and the
Subsidiaries taken as a whole, (b) the ability of the Company to perform any of
its obligations under this Agreement or (c) the rights of or benefits available
to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans),
or obligations in respect of one or more Hedging Agreements, of the Company and
its Subsidiaries in an aggregate principal amount exceeding $25,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Company or any Subsidiary in respect of any Hedging Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Company or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Borrowing Subsidiary and any
Subsidiary (a) the Total Assets of which exceed 5% of the Total Assets of the
Company and its consolidated Subsidiaries as of the end of the most recently
completed fiscal year or (b) the Net Revenue of which exceeds 5% of the Net
Revenue of the Company and its consolidated Subsidiaries as of the end of the
most recently completed fiscal year provided, that (i) any Subsidiary that
directly or indirectly owns a Material Subsidiary shall itself be a Material
Subsidiary and (ii) in the event Subsidiaries that would otherwise not be
Material Subsidiaries shall in the aggregate account for a percentage in excess
of 15% of the Total Assets or 15% of the Net Revenue, then one or more of such
Subsidiaries designated by the Company (or, if the Company shall make no
designation, one or more of such Subsidiaries in descending order based on their
respective contributions to Total Assets), shall be included as Material
Subsidiaries to the extent necessary to eliminate such excess.
"Maturity Date" means August 30, 2001.
18
"Multicurrency Borrowing" means a Borrowing comprised of
Multicurrency Loans.
"Multicurrency Loan" means a Revolving Loan denominated in a
Committed Currency or a Competitive Loan in an Eligible Currency.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Revenue" means, with respect to any Person for any period, the
net revenue of such Person and its consolidated subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"Obligations" means the obligations of each of the Borrowing
Subsidiaries under this Agreement and the Borrowing Subsidiary Agreements with
respect to the payment of (i) the principal of and interest on the Loans to each
such Borrowing Subsidiary when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (ii) all other
monetary obligations of each of the Borrowing Subsidiaries hereunder and
thereunder.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.04;
19
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business and deposits securing liabilities to insurance carriers
under insurance or self-insurance arrangements; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 10.04.
20
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any Loan to the
Company or any Domestic Borrowing Subsidiary, the United States of America, and
(ii) in the case of any Loan to any other Borrowing Subsidiary, the jurisdiction
imposing (or having the power to impose) withholding tax on payments by such
Borrowing Subsidiary under this Agreement.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 51% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time;
provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
total Competitive Loan Exposures of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"Reset Date" has the meaning set forth in Section 1.05(a).
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans (or the Dollar Equivalent thereof, in the case of Multicurrency Loans) and
its Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Spin-Off" means the distribution by the Company, to the holders of
its common stock, of all outstanding shares of common stock of each of ACNielsen
Corporation and Cognizant Corporation, and all related transactions, including
execution and delivery of any agreements between the Company or any Subsidiary
on the one hand, and ACNielsen or Cognizant Corporation or any subsidiary
thereof, on the other hand.
21
"Spin-Off Information" means the Draft Information Statement and the
pro forma financial statements of the Company after the Spin-Off, both of which
have been delivered to the Lenders prior to the date hereof.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocur- rency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposures at such time.
22
"Swingline Lender" means The Chase Manhattan Bank, in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan in dollars made pursuant to
Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Assets" means, at any date as to any Person, the total assets
of such Person and its consolidated subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"Total Debt" means, at any date all indebtedness of the Company and
its consolidated Subsidiaries at such date to the extent such items should be
reflected on the consolidated balance sheet of the Company (excluding any such
items which appear only in the notes to such consolidated balance sheet) at such
date in accordance with GAAP.
"Total Debt to EBITDA Ratio" means, at any time, the ratio of (a)
Total Debt at such time to (b) EBITDA for the most recent period of four
consecutive fiscal quarters of the Company ended at or prior to such time.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and the Borrowing Subsidiary Agreements, the
borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving
23
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in
24
the application thereof, then such provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Eligible Currency and (ii) give notice thereof to the Lenders and the Company.
The Exchange Rates so determined shall become effective on the first Business
Day immediately following the relevant Calculation Date (a "Reset Date"), shall
remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than clause (e) of Section 2.07, clause (i) of
Section 2.13, Section 10.14 or any other provision expressly requiring the use
of a current Exchange Rate) be the Exchange Rates employed in converting any
amounts between dollars and Eligible Currencies.
(b) Not later than 5:00 p.m., New York City time, on each Reset Date
and each Borrowing Date with respect to Multicurrency Loans, the Administrative
Agent shall (i) determine the Dollar Equivalent of the aggregate principal
amount of the Multicurrency Loans then outstanding (after giving effect to any
Multicurrency Loans to be made or repaid on such date) and (ii) notify the
Lenders and the Company of the results of such determination.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans, denominated in dollars
or in any Committed Currency, to any Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (a)
such Lender's Revolving Credit Exposure exceeding such Lender's Commitment, (b)
the sum of the total Revolving Credit Exposures plus the total Competitive Loan
Exposures exceeding the total Commitments or (c) the Dollar Equivalent of the
aggregate principal amount of all outstanding Multicurrency Loans exceeding
$250,000,000. Within the foregoing limits and subject to
25
the terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans denominated in the
same currency and made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and Competitive Bids of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the applicable Borrower
may request in accordance herewith, (ii) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Competitive Loans or Fixed Rate Loans as the
applicable Borrower may request in accordance herewith and (iii) each
Multicurrency Borrowing shall be a Eurocurrency Revolving Borrowing or a
Eurocurrency Competitive Borrowing. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurocurrency Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of any Borrower to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000 (or the Dollar
Equivalent thereof); provided that a Eurocurrency Revolving Borrowing that is a
Multicurrency Borrowing may be continued into a new Interest Period pursuant to
Section 2.07 without regard to the foregoing. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $10,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments. Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $10,000,000. Each Swingline Loan shall be in an amount that
26
is an integral multiple of $500,000 and not less than $500,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of twenty (but no more than ten
in any one currency) Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, a Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period", and the currency of such
Borrowing, which shall be dollars or a Committed Currency; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed,
27
which shall comply with the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no currency is
specified with respect to any requested Eurocurrency Revolving Borrowing, then
the relevant Borrower shall be deemed to have selected dollars. If no Interest
Period is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the total Competitive
Loan Exposures at any time shall not exceed the total Commitments. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time (or, if such request relates to a Borrowing in an
Eligible Currency and is delivered or telecopied to the Administrative Agent in
London, not later than 10:00 a.m., London time), four Business Days before the
date of the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not
later than 10:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that the Borrowers may submit jointly up to
(but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the applicable Borrower.
28
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be a Eurocurrency
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period", and the currency of such Borrowing which shall be dollars or an
Eligible Currency; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06.
If no currency is specified with respect to any Competitive Bid Request, the
relevant Borrower shall be deemed to have selected dollars. Promptly following
receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to any Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., New York City time (or, if the Competitive Bid relates to a Borrowing
in an Eligible Currency and is delivered or telecopied to the Administrative
Agent in London, not later than 10:00 a.m., London time), three Business Days
before the proposed date of such Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved
29
by the Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 (or the Dollar Equivalent thereof) and which
may equal the entire principal amount of the Competitive Borrowing requested by
the applicable Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places), (iii) the Interest
Period applicable to each such Loan and the last day thereof and (iv) the
currency of the Competitive Borrowing.
(c) The Administrative Agent shall promptly notify the relevant
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, a Borrower may
accept or reject any Competitive Bid. The relevant Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 10:30 a.m., New York City time (or, if such notice
relates to a Borrowing in an Eligible Currency and is delivered or telecopied in
London, not later than 11:00 a.m., London time), three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of such Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
such Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple
30
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
(or the Dollar Equivalent thereof); provided further that if a Competitive Loan
must be in an amount less than $5,000,000 (or the Dollar Equivalent thereof)
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of $1,000,000 (or the Dollar Equivalent thereof), and in calculating
the pro rata allocation of acceptances of portions of multiple Competitive Bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner determined by such
Borrower. A notice given by any Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the relevant Borrower at least one quarter of an hour earlier than the time
by which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
in dollars to any Borrower from time to time during the Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Credit Exposures plus the
total Competitive Loan Exposures exceeding the total Commitments; provided that
the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, any Borrower may borrow, prepay and
reborrow Swingline Loans.
31
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from any Borrower. The Swingline Lender shall make each
Swingline Loan available to the relevant Borrower by means of a credit to the
general deposit account of the Company with the Swingline Lender by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan (and if the
applicable Borrower is a Borrowing Subsidiary, the Company shall make such funds
available to such Borrowing Subsidiary) or to such other account as may be
specified in the applicable Borrowing Request.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the relevant Borrower of
32
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from any Borrower (or other party on behalf of such
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the relevant
Borrower of any default in the payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan (other than a Multicurrency Loan) to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Company maintained with the Administrative Agent in New York City and designated
by such Borrower in the applicable Borrowing Request or Competitive Bid Request
(and, if the applicable Borrower is a Borrowing Subsidiary, the Company shall
make such funds available to such Borrowing Subsidiary) or to such other account
as may be specified in the applicable Borrowing Request or Competitive Bid
Request. Each Lender shall make each Multicurrency Loan to be made by it
hereunder on the proposed date thereof by wire transfer of such immediately
available funds as may then be customary for the settlement of international
transactions in the applicable Eligible Currency, by 11:00 a.m., London time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such
Multicurrency Loans available to the relevant Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Company maintained with
the Administrative Agent in London and designated by such Borrower in the
applicable Borrowing Request or Competitive Bid Request (and, if the applicable
33
Borrower is a Borrowing Subsidiary, the Company shall make such funds available
to such Borrowing Subsidiary).
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and each Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the relevant Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, (x) the Federal Funds
Effective Rate (in the case of a Borrowing in dollars) and (y) the rate
reasonably determined by the Administrative Agent to be the cost to it of
funding such amount (in the case of a Borrowing in an Eligible Currency) or (ii)
in the case of such Borrower, the interest rate applicable to the subject Loan.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Competitive Borrowings or Swingline Borrowings, which may not be converted or
continued. Notwithstanding any contrary provision herein, this Section shall not
be
34
construed to permit any Borrower to (i) change the currency of any Borrowing or
(ii) convert any Multicurrency Borrowing to an ABR Borrowing.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each
35
Lender of the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing (unless such Borrowing is a Multicurrency
Borrowing, in which case such Borrowing shall become due and payable on the last
day of such Interest Period). Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Company, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid,
each Eurocurrency Revolving Borrowing (other than a Multicurrency Borrowing)
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto and (iii) each Multicurrency Borrowing shall be converted
into an ABR Loan at the Exchange Rate determined by the Administrative Agent on
the last day of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Company shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the
total Competitive Loan Exposures would exceed the total Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the
36
contents thereof. Each notice delivered by the Company pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Company may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Borrower on the Maturity Date, (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Competitive Loan of such Borrower on the last day of the Interest Period
applicable to such Loan and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan of such Borrower on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a Revolving
Borrowing in dollars or Competitive Borrowing in dollars is made by a Borrower,
such Borrower shall repay all Swingline Loans of such Borrower then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
(and, in the case of a Multicurrency Loan, the currency) thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
37
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, each Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and the Company. Thereafter, the Loans
evidenced by each such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have the
right at any time and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to prior notice in accordance with paragraph (d) of
this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) If, on the last day of any Interest Period for any Borrowing,
the sum of the total Revolving Credit Exposures plus the total Competitive Loan
Exposures exceeds the total Commitments, the relevant Borrower shall, on such
day, prepay Revolving Loans in an amount equal to the lesser of (i) such excess
and (ii) the amount of such Borrowing. If, on any Reset Date, the sum of the
total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeds 105% of the total Commitments, then the Borrowers shall, on the next
Reset Date, prepay one or more Revolving Borrowings in an aggregate principal
amount equal to the excess, if any, of the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures (in each case as of such
next Reset Date) over the total Commitments.
(c) If, on the last day of any Interest Period for any Multicurrency
Borrowing, the Dollar Equivalent of
38
the aggregate principal amount of outstanding Multicurrency Loans exceeds
$250,000,000, the relevant Borrower shall, on such day, prepay such
Multicurrency Borrowing in an amount equal to the lesser of (i) such excess and
(ii) the amount of such Borrowing. If, on any Reset Date, the Dollar Equivalent
of the aggregate principal amount of outstanding Multicurrency Loans exceed 105%
of $250,000,000, then the Borrowers shall, on the next Reset Date, prepay one or
more Multicurrency Borrowings in an aggregate principal amount equal to the
excess, if any, of the Dollar Equivalent of the aggregate principal amount of
outstanding Multicurrency Loans (as of such next Reset Date) over $250,000,000.
(d) The relevant Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New
York City time (or, if such notice relates to a Multicurrency Loan and is
delivered or telecopied in London, not later than 10:00 a.m., London time),
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each
39
Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the Commitment of such Lender (whether used or unused) during the
period from and including the date hereof to but excluding the date on which
such Commitment terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued facility fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any facility fees accruing after the date on which
the Commitments terminate shall be payable on demand. All facility fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurocurrency
Revolving Loan, the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate, or (ii) in the case of a Eurocurrency
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
40
(c) Each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) n the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest
41
error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate,
as applicable, for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest
Period; or
(c) in the case of a Multicurrency Borrowing, the Administrative
Agent determines (which determination shall be conclusive absent manifest
error) that deposits in the applicable Committed Currency are not
generally available in the London interbank market;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, and any Eurocurrency Borrowing so requested to be continued shall
be converted to an ABR Borrowing at the Exchange Rate determined by the
Administrative Agent on the last day of the then current Interest Period with
respect thereto, (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing (other than a Multicurrency Borrowing), such Borrowing shall be made
as an ABR Borrowing and (iii) any request by any Borrower for a Eurocurrency
Competitive Borrowing or a Multicurrency Borrowing shall be ineffective;
provided that if the circumstances giving rise to such notice do not affect all
the Lenders, then requests for Eurocurrency Competitive Borrowings may be made
to Lenders that are not affected thereby and, if the circumstances giving rise
to such notice do not affect all applicable currencies, then requests for
Eurocurrency Borrowings may be made in the currencies that are not affected
thereby.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
42
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market (or any other
market in which the funding operations of such Lender shall be conducted
with respect to any Committed Currency) any other condition affecting this
Agreement or Eurocurrency Loans or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Company will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such
43
compensation; provided that the Company shall not be required to compensate a
Lender pursuant to this Section for any increased costs or reductions incurred
more than six months prior to the date that such Lender notifies the Company of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's intention to claim compensation therefor; provided further that, if the
Change in Law 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.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced or be otherwise known to it
prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.10(d) and is revoked in accordance
herewith), (d) the failure to borrow any Eurocurrency Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurocurrency Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Company pursuant to
Section 2.18, then, in any such event, the Company shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, the loss to any Lender attributable to any such event shall
be deemed to include an amount determined by such Lender to be equal to the
excess, if any, of (i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan (and in the same currency as
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
44
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 Adjusted LIBO Rate (or, in the case of a Eurocurrency
Competitive Loan, the LIBO Rate) for such Interest Period, over (ii) the amount
of interest that such Lender would earn on such principal amount for such period
if such Lender were to invest such principal amount for such period at the
interest rate that would be bid by such Lender (or an affiliate of such Lender)
for deposits in the same currency from other banks in the eurodollar market at
the commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender 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 Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or an account of
any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative Agent
and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of any Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section), and any penalties, interest and
45
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement
pursuant to the law of the Relevant Jurisdiction or any treaty to which the
Relevant Jurisdiction is a party shall deliver to the Company (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Company as will permit such payments to be made
without withholding or at a reduced rate.
If the Company determines in good faith that a reasonable basis
exists for contesting an Indemnified Tax, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Company in
challenging such Tax at the Company's expense if requested by the Company. If
any Lender or the Administrative Agent, as applicable, receives a refund
(whether by way of a direct payment or by offset) of any Indemnified Tax for
which a payment has been made pursuant to Section 2.16 or realizes any credit or
other tax benefit as a result of the payment of such Tax by any Borrower, which
refund, credit or tax benefit in the good faith judgment of such Lender or the
Administrative Agent, as the case may be, is allocable to such payment made
under Section 2.16, the amount of such refund, credit or tax benefit (together
with any interest received from the applicable Governmental Authority thereon)
shall be paid to such Borrower.
46
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees or under Section 2.14, 2.15 or
2.16, or otherwise) prior to 1:00 p.m., New York City time (or 1:00 p.m., London
time, in respect of principal of or interest on any Multicurrency Loan), on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made in dollars to the Administrative Agent at its offices at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (or in the applicable Eligible Currency to the
Administrative Agent at its offices at Trinity Tower, 9 Xxxxxx Xxxxx Street,
London, in respect of principal of or interest on any Multicurrency Loan),
except payments to be made directly to the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16
and 10.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All Loans hereunder
shall be denominated and made, and all payments hereunder (whether of principal,
interest or otherwise) shall be made, in dollars, except that Eurocurrency
Revolving Loans may be denominated and made in Eligible Currencies as expressly
provided herein and principal of and interest on any Eurocurrency Revolving Loan
made in an Eligible Currency shall be paid in such Eligible Currency.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
47
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to any Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from
the Company or the relevant Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders hereunder that
such Borrower will not make such payment, the Administrative Agent may assume
that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders the amount due.
In such event, if such Borrower has not in fact made such payment, then each of
the Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the
48
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, (i) in the case of a Borrowing in
dollars, at the Federal Funds Effective Rate and (ii) in the case of a Borrowing
in an Eligible Currency, at the rate reasonably determined by the Administrative
Agent to be the cost to it of funding such amount.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(b) or 2.17(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
49
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Company shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans) and
participations in Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Company (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling such Borrower to require
such assignment and delegation cease to apply.
SECTION 2.19. Borrowing Subsidiaries. On or after the Effective
Date, the Company may designate any Subsidiary of the Company (of which the
Company owns or Controls at least 80% of the ordinary voting power) as a
Borrowing Subsidiary by delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company, and upon such
delivery such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement until the Company shall have executed
and delivered to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Borrowing Subsidiary at a time when any principal of or interest on any
Loan to such Borrowing Subsidiary shall be outstanding hereunder, provided that
such Borrowing Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement.
SECTION 2.20. Adjustment of Applicable Rate. As provided in the
definition of the term "Applicable Rate",
50
the Applicable Rate may be adjusted in certain circumstances after April 1,
1997, with retroactive effect to April 1, 1997. In such event (a) the
Administrative Agent shall determine such retroactive adjustment and notify the
Company and the Lenders thereof and of the difference, if any, between (i) the
amounts paid by or to any party hereto prior to such determination and (ii) the
amounts that would have been so paid if such adjustment had been made on April
1, 1997 (the Administrative Agent's determinations thereof being conclusive and
binding absent manifest error) and (b) promptly following receipt of such
notice, any party hereto that received any excess payment shall refund the same
to the party that made such payment and any party hereto that made an
insufficient payment shall make payment to the party or parties entitled thereto
in an amount equal to such insufficiency, in each case without interest.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and its
Material Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Company's (and, as applicable, each Borrowing Subsidiary's) corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, and each Borrowing Subsidiary Agreement with respect to any
Borrowing Subsidiary (as to which a Borrowing Subsidiary Termination has not
become effective) has been duly executed and delivered by the Company and such
Borrowing Subsidiary and constitutes a legal, valid and binding obligation of
the
51
Borrowing Subsidiary thereunder, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. After giving effect to each Borrowing, the total of all notes, credit
arrangements, guarantees of indebtedness and/or other instruments of
indebtedness issued and outstanding by the Company and/or any subsidiary and/or
affiliate (within the meaning of the most recent resolutions of the Board of
Directors of the Company) will not exceed the amount duly authorized by the
resolutions of the Board of Directors of the Company at the time of such
Borrowing.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except for such consents,
approvals, registrations, filings and other actions the failure to obtain or
make could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority,
except for such violations which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding the Company or any of its Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Company or
any of its Subsidiaries, except for such violations and defaults which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, and (d) will not result in the creation or imposition
of any Lien on any asset of the Company or any of its Material Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, shareholders' equity and cash flows (i) as of
and for the fiscal year ended December 31, 1995, reported on by Coopers &
Xxxxxxx L.L.P., independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of
52
the fiscal year ended June 30, 1996, certified by its chief financial officer.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Except as may otherwise be disclosed in the Spin-Off
Information, since December 31, 1995, there has been no material adverse change
in the business, assets, operations, prospects or financial condition, of the
Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and its Material
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to the business of the Company and its
Subsidiaries, taken as a whole, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to the business of the Company and its Subsidiaries taken as a
whole, and the use thereof by the Company and its Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement, any Borrowing Subsidiary Agreement
or the Transactions.
53
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Company nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Company nor any of its Material Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and each of its
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together
54
with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such Plan
by an amount that could reasonably be expected to result in a Material Adverse
Effect, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans by an amount that could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. None of the reports, financial statements,
certificates or other information furnished by or on behalf of any Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any Borrowing Subsidiary Agreement or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the
Effective Date a list of all Subsidiaries and the percentage ownership interest
of the Company therein. As of the Effective Date, the shares of capital stock of
such Subsidiaries will be fully paid and non-assessable and such shares and
other ownership interests so indicated by Schedule 3.12 will be owned by the
Company, directly or indirectly, free and clear of all Liens.
SECTION 3.13. Solvency. On the Effective Date and immediately after
the consummation of the Spin-Off, (a) the fair value of the assets of the
Company, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair
55
saleable value of the property of the Company will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Company does not intend to
incur or does not believe it will incur debts and liabilities, subordinated,
contingent or otherwise, beyond its ability to pay such debts and liabilities as
they become absolute and matured; and (d) the Company will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the
Effective Date and the Spin-Off.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Xxxxxx Xxxxxx, Associate General Counsel to the
Company, and Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company,
substantially in the form of Exhibit B-1 and B-2, respectively, and
covering such other matters relating to the Company, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The Company
hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative
56
Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Company, the authorization of the
Transactions and any other legal matters relating to the Company, this
Agreement or the Transactions, all in form and substance satisfactory to
the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the Chairman, the President, a Vice
President or a Financial Officer of the Company, confirming compliance
with the conditions set forth in paragraphs (a) (including the
representations and warranties set forth in Section 3.04) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Company hereunder.
(f) The Administrative Agent shall have received evidence
satisfactory to it that the Company's existing loan agreements have been
terminated and all loans and obligations thereunder have been paid in
full.
(g) The Lenders shall have received copies of the financial
statements referred to in Section 3.04 and the pro forma financial
statements of the Company as of June 30, 1996, giving effect to the
Spin-Off as if it had occurred on such date.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
September 5, 1996 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
57
(a) The representations and warranties of the Company set forth in
this Agreement (other than the representations and warranties set forth in
Section 3.04) and, in the case of a Borrowing by a Borrowing Subsidiary,
the representations and warranties of such Borrowing Subsidiary in its
Borrowing Subsidiary Agreement shall be true and correct on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received a certificate,
dated the date of such Borrowing and signed by a Financial Officer of the
Company, confirming that after giving effect to such Borrowing, the total
of all notes, credit arrangements, guarantees of indebtedness and/or other
instruments of indebtedness issued and outstanding by the Company and/or
any subsidiary and/or affiliate (within the meaning of the most recent
resolutions of the Board of Directors of the Company) will not exceed the
amount duly authorized by the resolutions of the Board of Directors of the
Company at the time of such Borrowing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company and, if applicable, the relevant Borrowing Subsidiary on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Each Borrowing Subsidiary Credit Event. The obligation
of each Lender to make Loans hereunder to any Borrowing Subsidiary is subject to
the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received
from each party thereto either (i) a counterpart of such Borrowing
Subsidiary's Borrowing Subsidiary Agreement or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page thereof) that such party has
signed a counterpart of such Borrowing Subsidiary Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such
58
Borrowing Subsidiary (which counsel shall be reasonably acceptable to the
Administrative Agent), substantially in the form of Exhibit C, and
covering such other matters relating to such Borrowing Subsidiary or its
Borrowing Subsidiary Agreement as the Required Lenders
shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of such
Borrowing Subsidiary, the authorization of the Transactions relating to
such Borrowing Subsidiary and any other legal matters relating to such
Borrowing Subsidiary, its Borrowing Subsidiary Agreement or such
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent (with a copy for each Lender):
(a) within 90 days after the end of each fiscal year of the Company,
its audited consolidated balance sheet and related statements of income,
shareholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year (such comparison to be included for the first time in
the financial statements delivered with respect to the 1997 fiscal year),
all reported on by Coopers & Xxxxxxx L.L.P. or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the
59
Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, its consolidated balance
sheet and related statements of income, shareholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year (such
comparison to be included for the first time in the financial statements
delivered with respect to the 1997 fiscal year), all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) prior to consummation of the Spin-Off, copies of the final form
of the Information Statement relating to the Spin-Off and copies of the
Company's pro forma consolidated balance sheet and related statements of
income, shareholders' equity (if any) and cash flow (if any) as of and for
the most recent date/dates and period/periods, prepared giving effect to
the Spin-Off as if it had occurred on such date/dates and for such
period/periods;
(d) concurrently with any delivery of financial statements under
clause (a), (b) or (c) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.05 and 6.06 and (iii) stating whether any material change in GAAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 affecting the Company
and, if any such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;
60
(e) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(f) promptly after the same become publicly available, copies of all
periodic and other material reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally, as the case may
be, and all amendments to any of the foregoing; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Subsidiary thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount that could reasonably be expected to result in a Material Adverse
Effect; and
61
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and
will cause each of its Material Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Company and its Subsidiaries, taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. Payment of Obligations. The Company will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Company
will, and will cause each of its Material Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations; provided that any
such insurance may be maintained through a program of self-insurance to the
extent customary among such companies.
SECTION 5.06. Books and Records; Inspection Rights. The Company
will, and will cause each of its
62
Material Subsidiaries to, keep proper books of record and account in accordance
with GAAP (or, the case of a foreign Subsidiary, generally accepted accounting
principles in the jurisdiction of organization of such foreign Subsidiary). The
Company will, and will cause each of its Material Subsidiaries to, permit any
representatives designated by the Administrative Agent on its own initiative or
at the request of the Required Lenders, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including
ERISA), except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be
used only for general corporate purposes, including back-up for the Company's
commercial paper program. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations G, U and X.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Company covenants and agrees with the Lenders that:
SECTION 6.01. Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned
63
or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.01;
provided that (i) such Lien shall not apply to any other property or asset
of the Company or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals, refinancings and replacements thereof that do not increase the
outstanding principal amount thereof (other than by an amount equal to any
costs and expenses incurred in connection with such extension, renewal,
refinancing or replacement);
(c) 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 or any Lien on
any asset of any Person existing at the time such Person is merged into or
consolidated with the Company or 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 or such merger, 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 or the date of such merger, as the case
may be, and extensions, renewals, refinancings and replacements thereof
that do not increase the outstanding principal amount thereof (other than
by an amount equal to any costs and expenses incurred in connection with
such extension, renewal, refinancing or replacement);
(d) any Lien on any asset (i) initially securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the
cost of acquiring or constructing such asset or (ii) securing Indebtedness
incurred to extend, renew, refinance or replace the Indebtedness then
secured by such Lien, provided that
64
(x) such Lien attaches to such asset concurrently with or within 90 days
after the acquisition thereof and (y) the principal amount of Indebtedness
secured by such Lien shall not be increased in connection with any
extension, renewal, refinancing or replacement of such Indebtedness (other
than by an amount equal to any costs and expenses incurred in connection
with such extension, renewal, refinancing or replacement);
(e) any Lien arising in connection with the sale or financing of
accounts receivable by the Company or any of its Subsidiaries provided
that the uncollected amount of account receivables subject at any time to
any such sale or financing shall not exceed $150,000,000;
(f) any Lien in favor of the Company or any Subsidiary granted by
the Company or any Subsidiary in order to secure any intercompany
obligations; and
(g) any Lien to secure Indebtedness and other obligations if,
immediately after the incurrence thereof, the sum (without duplication) of
all amounts secured by Liens which would not be permitted but for this
clause (g) does not exceed $150,000,000.
SECTION 6.02. Fundamental Changes. (a) The Company will not, and
will not permit any of its Material Subsidiaries to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) all or substantially all of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Company in
a transaction in which the Company is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Company or to another Subsidiary, (iv)
any Subsidiary may liquidate or dissolve if the Company determines in good faith
that such liquidation or dissolution is in the best interests of the Company and
would not result in a Material Adverse Effect; provided that a Borrowing
Subsidiary may not
65
merge, consolidate, liquidate or dissolve unless, in addition to the foregoing
conditions, the surviving entity, or the entity into which such Borrowing
Subsidiary liquidates or dissolves, is a Borrower and assumes all Obligations of
such Borrowing Subsidiary and (v) the Spin-Off may be consummated if (A) the
Company has delivered to the Lenders the pro forma financial statements required
by clause (c) of Section 5.01 and such pro forma financial statements do not
differ in any material respect with respect to the Company from the financial
statements contained in the Spin-Off Information, (B) the Spin-Off is
consummated in all material respects with respect to the Company in accordance
with the Spin-Off Information and all applicable laws, (C) immediately prior to
the Spin-Off, no material adverse change in the business, assets, operations or
financial condition of the Company and its Subsidiaries, taken as a whole, shall
have occurred and (D) immediately after giving effect to the Spin-Off, no
Default shall have occurred and be continuing.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.03. Transactions with Affiliates. The Company will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Company and its wholly owned Subsidiaries
not involving any other Affiliate and (c) transactions described in the Spin-Off
Information.
SECTION 6.04. Sale and Lease-Back Transactions. The Company will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into any arrangement with any Person (other than a Subsidiary) whereby it
shall sell or transfer any property used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the
66
same purpose or purposes as the property being sold or transferred, except for
any such arrangement or arrangements with an aggregate sale price not exceeding
at any time $150,000,000.
SECTION 6.05. Total Debt to EBITDA Ratio. The Total Debt to EBITDA
Ratio will not exceed 4.0 to 1.0 at any time. Following the consummation of the
Spin-Off, for purposes of calculating EBITDA for any relevant period prior to
the Spin-Off, EBITDA for such period shall be determined on a pro forma basis
adjusted to give effect to the Spin-Off as if the Spin-Off had occurred at the
beginning of such period.
SECTION 6.06. Interest Coverage Ratio. The Interest Coverage Ratio
for any period of four consecutive fiscal quarters of the Company will not be
less than 3.0 to 1.0. Following the consummation of the Spin-Off, for purposes
of calculating EBITDA and Interest Expense for any relevant period prior to the
Spin-Off, EBITDA and Interest Expense for such period shall be determined on a
pro forma basis adjusted to give effect to the Spin-Off as if the Spin-Off had
occurred at the beginning of such period.
SECTION 6.07. Borrowing Subsidiaries. The Company will not cease to
own or Control at least 80% of the ordinary voting power of any Borrowing
Subsidiary.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur and
be continuing:
(a) any Borrower shall fail to pay any principal of any Loan of such
Borrower when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan of such
Borrower or any fee or any other amount (other than an amount referred to
in clause (a) of this Article) payable by such Borrower under this
Agreement, when and as the same shall become due
67
and payable, and such failure shall continue unremedied for a period
of three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with this
Agreement, any Borrowing Subsidiary Agreement or any amendment or
modification hereof or thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
this Agreement, any Borrowing Subsidiary Agreement or any amendment or
modification hereof or thereof, shall prove to have been incorrect when
made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to
the Company's existence), 5.08 or in Article VI;
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any Borrowing
Subsidiary Agreement (other than those specified in clause (a), (b), (c)
or (d) of this Article), and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent
(given at the request of any Lender) to the Company;
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
68
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company
or any Material Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Material Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Company or any Material Subsidiary shall become unable,
admit in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $25,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;
69
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount that could reasonably
be expected to result in a Material Adverse Effect;
(m) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Article IX or the guarantee of the
Company hereunder shall not be (or shall be claimed by any Person not to
be) valid or in full force and effect; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower; and in case of any
event with respect to the Company described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower; and in the case of any
event with respect to any Borrowing Subsidiary described in clause (h) or (i) of
this Article, (i) the eligibility of such Borrowing Subsidiary to borrow shall
thereupon terminate and (ii) the Loans of such Borrowing Subsidiary shall become
immediately due and payable, together with accrued interest thereon and all fees
70
and other obligations thereunder of such Borrowing Subsidiary accrued
thereunder, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrowing Subsidiary.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written
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notice thereof is given to the Administrative Agent by a Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any Borrowing Subsidiary Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any Borrowing Subsidiary Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for any Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
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Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor (and, at any time when no Default shall have
occurred and is continuing, with the prior written consent of the Company). If
no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
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ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder, the
Company hereby irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, the Obligations. The Company further agrees that the
due and punctual payment of the Obligations may be extended or renewed, in whole
or in part, without notice to or further assent from it, and that it will remain
bound upon its Guarantee hereunder notwithstanding any such extension or renewal
of any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender or the Administrative Agent to assert any claim or demand
or to enforce any right or remedy against any Borrowing Subsidiary under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
Borrowing Subsidiary Agreement or any other agreement; or (c) the failure of any
Lender to exercise any right or remedy against any Borrowing Subsidiary.
The Company further agrees that its agreement hereunder constitutes
a promise of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Obligations
or operated as a discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Lender to any balance of any
deposit account or credit on the books of any Lender in favor of any Borrower or
any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Company hereunder shall not be discharged or impaired or
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otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under this Agreement or any
other agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of the Company or otherwise operate as a discharge
of the Company or any other Borrower as a matter of law or equity.
The Company further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by the Administrative Agent or any Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Company further agrees that if payment in respect of
any Obligation shall be due in a currency other than dollars and/or at a place
of payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
similar event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the judgment of any applicable Lender, not
consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of such Obligation in
dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify such Lender against any losses
or expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any Obligation, each Lender shall, in
a reasonable manner, assign the amount of such Obligation owed to it and so paid
to the Company, such assignment to be pro tanto to the extent to which the
Obligation in question was discharged by the Company, or
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make such disposition thereof as the Company shall direct (all without recourse
to any Lender and without any representation or warranty by any Lender).
Upon payment by the Company of any sums as provided above, all
rights of Company against any Borrowing Subsidiary arising as a result thereof
by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations owed by such Borrowing Subsidiary to the Lenders.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Company at 000 Xxxxxxx
Xxxx, Xxxxxx, XX 00000, Attention of Treasurer (Telecopy No. (203)
834-4422);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, Grand Central Tower, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxxx (Telecopy No. (212)
270-0002), with a copy to The Chase Manhattan Bank, Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxxxxx (Telecopy No. (212)
552-0259);
(c) if to the Swingline Lender, to The Chase Manhattan Bank, Agent
Bank Services Group, Grand Central Tower, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxxx (Telecopy No. (000) 000-0000),
with a copy to The Chase Manhattan Bank, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxxxxxx (Telecopy No. (000) 000-0000);
and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
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Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any Borrowing Subsidiary Agreement
nor any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Company
and the Required Lenders or by the Company and the Administrative Agent with the
consent of the Required Lenders (and, in the case of a Borrowing Subsidiary
Agreement, the applicable Borrowing Subsidiary); provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.17(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
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provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender or (vi)
release the Company from, or limit or condition, its obligations under Article
IX, without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent or the Swingline Lender, as the case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any Borrowing Subsidiary Agreement or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement or any Borrowing Subsidiary Agreement, including its rights under
this Section, or in connection with the Loans made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.
(b) The Company shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any Borrowing
Subsidiary Agreement or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or the use
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of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Company or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction to have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any Borrowing Subsidiary Agreement or
any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
(including any Borrowing Subsidiaries) and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder or under any Borrowing
Subsidiary Agreement without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void). Nothing in this
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Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its Swingline Exposure, the Swingline Lender) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Company and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive Loans, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided further that any
consent of the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing with respect to the Company. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
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Assignment and Acceptance covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 10.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Company and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower, the
Administrative Agent or the Swingline Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers,
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the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any such pledge or assignment to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the Borrowing Subsidiary
Agreements and the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any
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Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 10.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto (excluding any Borrowing
Subsidiaries), and thereafter shall be binding upon and inure to the benefit of
the parties hereto (including any Borrowing Subsidiaries) and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender
83
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of any
Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its properties in the courts of any
jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
84
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the manner provided
for notices in Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
85
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company. For the purposes of this Section, "Information" means
all information received from the Company relating to the Company or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Company; provided that, in the case of information received
from the Company after the date hereof, such information is identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Borrowing Subsidiary) agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business
86
Day immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE DUN & BRADSTREET CORPORATION,
by
/s/ P. C. Xxxxxxx
------------------------
Name: P. C. Xxxxxxx
Title: Vice President &
Treasurer
87
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
CITIBANK, N.A., individually and as
Syndication Agent,
by
/s/ Xxxxxxx X. Xxxxxxx III
-----------------------------
Name: Xxxxxxx X. Xxxxxxx III
Title: Attorney-in-Fact
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, individually and as
Documentation Agent,
by
/s/ Xxxxxx X. X. Xxxxx
-----------------------------
Name: Xxxxxx X. X. Xxxxx
Title: Associate
BANK OF MONTREAL,
by
/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Director
SUNTRUST BANK, ATLANTA,
by
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President &
Manager
