EXECUTION COPY
CREDIT AGREEMENT
dated as of
July 22, 2004
among
BORGWARNER INC.,
as Borrower
The Lenders Party Hereto
JPMORGAN CHASE BANK,
Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
and
CALYON NEW YORK BRANCH
CITIBANK, N.A.
DEUTSCHE BANK SECURITIES INC.,
as Documentation Agents
$600,000,000 REVOLVING CREDIT AND
COMPETITIVE ADVANCE FACILITY
X.X. XXXXXX SECURITIES INC. and BANC OF AMERICA
SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Page
ARTICLE I Definitions 1
SECTION 1.1. Defined Terms 1
SECTION 1.2. Classification of Loans and Borrowings 20
SECTION 1.3. Terms Generally 20
SECTION 1.4. Accounting Terms; GAAP 20
SECTION 1.5. Change of Currency. 20
ARTICLE II The Credits 21
SECTION 2.1. Commitments 21
SECTION 2.2. Loans and Borrowings 22
SECTION 2.3. Requests for Revolving Borrowings 23
SECTION 2.4. Competitive Bid Procedure 24
SECTION 2.5. Swingline Loans 26
SECTION 2.6. Letters of Credit 28
SECTION 2.7. Extension of Maturity Date 32
SECTION 2.8. Funding of Borrowings 34
SECTION 2.9. Interest Elections 34
SECTION 2.10. Termination and Reduction of Commitments 36
SECTION 2.11. Repayment of Loans; Evidence of Debt 37
SECTION 2.12. Prepayment of Loans 38
SECTION 2.13. Fees 39
SECTION 2.14. Interest 40
SECTION 2.15. Alternate Rate of Interest 41
SECTION 2.16. Increased Costs 42
SECTION 2.17. Break Funding Payments 43
SECTION 2.18. Taxes 44
SECTION 2.19. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs 45
SECTION 2.20. Mitigation Obligations; Replacement of
Lenders 47
ARTICLE III Representations and Warranties 47
SECTION 3.1. Organization; Powers 48
SECTION 3.2. Authorization; Enforceability 48
SECTION 3.3. Governmental Approvals; No Conflicts 48
SECTION 3.4. Financial Condition; No Material
Adverse Effect 48
SECTION 3.5. Properties 49
SECTION 3.6. Litigation and Environmental Matters 49
SECTION 3.7. Compliance with Laws and Agreements 49
SECTION 3.8. Investment and Holding Company Status 49
SECTION 3.9. Taxes 50
SECTION 3.10. ERISA 50
SECTION 3.11. Federal Regulations 50
SECTION 3.12. Disclosure 50
ARTICLE IV Conditions 50
SECTION 4.1. Effective Date 51
SECTION 4.2. Each Credit Event 52
ARTICLE V Affirmative Covenants 52
SECTION 5.1. Financial Statements and Other Information 52
SECTION 5.2. Notices of Material Events 53
SECTION 5.3. Existence; Conduct of Business 54
SECTION 5.4. Payment of Obligations 54
SECTION 5.5. Maintenance of Properties; Insurance 54
SECTION 5.6. Books and Records; Inspection Rights 54
SECTION 5.7. Compliance with Laws 55
SECTION 5.8. Use of Proceeds and Letters of Credit 55
ARTICLE VI Negative Covenants 55
SECTION 6.1. Financial Covenants 55
SECTION 6.2. Liens 55
SECTION 6.3. Fundamental Changes 56
SECTION 6.4. Third Party Guarantees 57
ARTICLE VII Events of Default 57
ARTICLE VIII The Administrative Agent 59
ARTICLE IX Miscellaneous 61
SECTION 9.1. Notices 61
SECTION 9.2. Waivers; Amendments 62
SECTION 9.3. Expenses; Indemnity; Damage Waiver 63
SECTION 9.4. Successors and Assigns 64
SECTION 9.5. Survival 66
SECTION 9.6. Counterparts; Integration; Effectiveness 66
SECTION 9.7. Severability 67
SECTION 9.8. Right of Setoff 67
SECTION 9.9. Governing Law; Jurisdiction; Consent to
Service of Process 67
SECTION 9.10. WAIVER OF JURY TRIAL 68
SECTION 9.11. Headings
SECTION 9.12. Confidentiality 68
SECTION 9.13. Judgment Currency 69
SECTION 9.14. Loan Conversion/Participation 69
SECTION 9.15. USA PATRIOT Act 71
SCHEDULES:
Schedule 2.1 Commitments
Schedule 3.6 Disclosed Matters
Schedule 6.2 Existing Liens
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Opinion of Borrower's Counsel
CREDIT AGREEMENT, dated as of July 22,
2004, among BORGWARNER INC., a Delaware
corporation (the "Borrower "), the several
banks and other financial institutions from
time to time parties hereto (the
"Lenders"), CALYON NEW YORK BRANCH,
CITIBANK, N.A. and DEUTSCHE BANK SECURITIES
INC., as documentation agents (in such
capacity, the "Documentation Agents"), BANK
OF AMERICA, N.A., as syndication agent (in
such capacity, the "Syndication Agent") and
JPMORGAN CHASE BANK, as administrative
agent for the Lenders (in such capacity,
the "Administrative Agent")..
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1.__ 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 Eurocurrency 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
Eurocurrency Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Adjusted Revolving Credit Exposure" shall
mean, with respect to each Lender, the
Revolving Credit Exposure of such Lender,
plus the amount of any participating
interests purchased by such Lender pursuant
to Section 9.14, minus the amount of any
participating interests sold by such Lender
pursuant to Section 9.14.
"Administrative Agent " has the meaning
assigned to such term in the preamble.
"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.
"Agents " means the collective reference to
the Administrative Agent, the Syndication
Agent and the Documentation Agents.
"Agreement " means this Credit Agreement,
as amended, supplemented or otherwise
modified from time to time.
"Alternate Base Rate " means, for any day,
a rate per annum equal to the higher 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.
"Alternative Currency " means Sterling, Yen
or Euros.
"Alternative Currency Loan " means a
Revolving Loan that is a Eurocurrency Rate
Loan and that is made in an Alternative
Currency pursuant to the applicable
Borrowing Request.
"Alternative Currency Sublimit " means,
with respect to any Alternative Currency,
the Dollar Amount of such Alternative
Currency set forth below:
Currency Alternative Currency Sublimit
Sterling $ 90,000,000
Yen $ 300,000,000
Euros $ 570,000,000
"Applicable Percentage " means, with
respect to any Lender under any Revolving
Facility, the percentage of the total
Commitments represented by such Lender's
Commitment under such Facility. If the
Commitments under such Facility have
terminated or expired, the Applicable
Percentages shall be determined based upon
the Commitments under such Facility 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 Margin" or
"Facility Fee Rate", as the case may be,
based upon the ratings by Xxxxx'x and S&P,
respectively, applicable on such date to
the Index Debt:
Index Debt Ratings: Eurocurrency
Margin
Facility
Fee
Rate
Category 1 0.170% 0.080%
A/A2 or higher
Category 2 0.260% 0.090%
A-/A3
Category 3 0.390% 0.110%
BBB+/Baa1
Category 4 0.610% 0.140%
BBB/Baa2
Category 5 0.700% 0.175%
BBB-/Baa3 or lower
For purposes of the foregoing, (i) if
either Xxxxx'x or S&P shall not have in
effect a rating for the Index Debt (other
than by reason of the circumstances
referred to in the last sentence of this
definition), then such rating agency shall
be deemed to have established a rating in
Category 5; (ii) the rating of Index Debt
on any day shall be deemed to be the rating
in effect at the close of business on such
day; (iii) if the ratings established or
deemed to have been established by Xxxxx'x
and S&P for the Index Debt shall fall
within different Categories, the Applicable
Rate shall be based on the higher of the
two ratings (e.g., A-/Baa1 results in
Category 2 status) unless one of the two
ratings is two or more Categories lower
than the other, in which case the
Applicable Rate shall be determined by
reference to the Category next below that
of the higher of the two ratings (e.g.,
A-/Baa2 results in Category 3 status); and
(iv) if the ratings established or deemed
to have been established by Xxxxx'x and S&P
for the Index Debt shall be changed (other
than as a result of a change in the rating
system of Xxxxx'x or S&P), 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 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. If the rating system
of Xxxxx'x or S&P shall change, or if
either such rating agency shall cease to be
in the business of rating corporate debt
obligations, the Borrower 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.
"Applicable Time " means, with respect to
any Borrowings and payments in any
Alternative Currency the local time in the
place of settlement for such Alternative
Currency, as may be reasonably determined
by the Administrative Agent to be necessary
for timely settlement on the relevant date
in accordance with normal banking
procedures in the place of payment.
"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 9.4), and accepted by the
Administrative Agent, in the form of
Exhibit A or any other form approved by the
Administrative Agent.
"Available Dollar Commitment " means at any
date of determination with respect to any
Dollar Lender, an amount in Dollars equal
to the excess, if any, of (a) the amount of
such Dollar Lender's Dollar Commitment in
effect on such date over (b) the Revolving
Credit Exposure of such Dollar Lender on
such date.
"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 " has the meaning assigned to
such term in the preamble.
"Borrowing " means (a) Revolving Loans of
the same Type and under the same Facility,
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 Request " means a request by the
Borrower for a Revolving Borrowing in
accordance with Section 2.3.
"Business Day " means any day that is not a
Saturday, Sunday or other day on which
commercial banks in New York City are
authorized or required by law to remain
closed; provided, however, that (i) when
used in connection with a Eurocurrency Loan
(other than a Eurocurrency Loan denominated
in Euro), the term "Business Day" shall
also exclude any day on which banks are not
open for dealings in dollar deposits in the
London interbank market (or other interbank
market selected by the Administrative Agent
where its eurocurrency operation for the
applicable currency are being conducted) or
in the city which is the principal
financial center of the country of issuance
of the applicable Alternative Currency and
(ii) when used in connection with a Loan
denominated in Euro "Business Day" shall
also exclude any day which is not a TARGET
Day.
"Capital Lease Obligations " of any Person
means the obligations of such Person to pay
rent or 2other 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.
"Capital Stock " means any and all shares,
interests, participations or other
equivalents (however designated) of capital
stock of a corporation, any and all
equivalent ownership interests in a Person
(other than a corporation) and any and all
warrants or options to purchase any of the
foregoing.
"Change in Control " means (a) the
acquisition of ownership, directly or
indirectly, beneficially or of record, by
any Person or group (within the meaning of
the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange
Commission thereunder as in effect on the
date hereof), of shares representing more
than 30% of the aggregate ordinary voting
power represented by the issued and
outstanding capital stock of the Borrower;
(b) occupation of a majority of the seats
(other than vacant seats) on the board of
directors of the Borrower by Persons who
were neither (i) nominated by the board of
directors of the Borrower nor (ii)
appointed by directors so nominated; or (c)
the acquisition of direct or indirect
Control of the Borrower 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 the Issuing Bank (or, for
purposes of Section 2.16(b), by any lending
office of such Lender or by such Lender's
or the Issuing Bank's holding company, if
any) with any request, guideline or
directive (whether or not having the force
of law) of any Governmental Authority made
or issued after the date of this Agreement.
"Class ", when used in reference to any
Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such
Borrowing, are Dollar Revolving Loans, Euro
Revolving Loans, Sterling Revolving Loans,
Yen Revolving Loans, Competitive Loans or
Swingline Loans.
"Code " means the Internal Revenue Code of
1986, as amended from time to time.
"Committed Exposure Percentage " shall
mean, on any date with respect to any
Lender, the percentage which the Adjusted
Revolving Credit Exposure of such Lender
constitutes of the Adjusted Revolving
Credit Exposures of all Lenders.
"Commitments " means, the collective
reference to the Dollar Commitments, the
Euro Commitments, the Sterling Commitments
and the Yen Commitments. The initial
aggregate amount of the Commitments is
$600,000,000.
"Competitive Bid " means an offer by a
Lender to make a Competitive Loan in
accordance with Section 2.4.
"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
by the Borrower for Competitive Bids in
accordance with Section 2.4.
"Competitive Loan " means a Loan made
pursuant to Section 2.4.
"Consolidated EBITDA " means, for any
period, Consolidated Net Income for such
period plus, without duplication and to the
extent reflected as a charge in the
statement of such Consolidated Net Income
for such period, the sum of (a) income tax
expense, (b) interest expense, amortization
or writeoff of debt discount and debt
issuance costs and commissions, discounts
and other fees and charges associated with
Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d)
amortization of intangibles (including, but
not limited to, goodwill) and organization
costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses
(including, whether or not otherwise
includable as a separate item in the
statement of such Consolidated Net Income
for such period, non-cash losses on sales
of assets outside of the ordinary course of
business), and (f) minority interest
charges and any other non-cash charges, and
minus, to the extent included in the
statement of such Consolidated Net Income
for such period, the sum of (a) interest
income, (b) any extraordinary, unusual or
non-recurring income or gains (including,
whether or not otherwise includable as a
separate item in the statement of such
Consolidated Net Income for such period,
gains on the sales of assets outside of the
ordinary course of business) and (c)
minority interest credits and any other
non-cash income (except for all amounts
that would, in conformity with GAAP, be set
forth opposite the caption "equity in
affiliate earnings and other income" (or
any like caption) on a consolidated income
statement of the Borrower and its
Subsidiaries), all as determined on a
consolidated basis. For the purposes of
calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters
(each, a "Reference Period") pursuant to
any determination of the Leverage Ratio,
(i) if at any time during such Reference
Period the Borrower or any Subsidiary shall
have made any Material Disposition, the
Consolidated EBITDA for such Reference
Period shall be reduced by an amount equal
to the Consolidated EBITDA (if positive)
attributable to the property that is the
subject of such Material Disposition for
such Reference Period or increased by an
amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such
Reference Period and (ii) if during such
Reference Period the Borrower or any
Subsidiary shall have made a Material
Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after
giving pro forma effect thereto as if such
Material Acquisition occurred on the first
day of such Reference Period. As used in
this definition, "Material Acquisition"
means any acquisition of property or series
of related acquisitions of property that
(a) constitutes assets comprising all or
substantially all of an operating unit of a
business or constitutes all or
substantially all of the common stock of a
Person and (b) involves the payment of
consideration by the Borrower and its
Subsidiaries in excess of $50,000,000; and
"Material Disposition" means any
disposition of property or series of
related dispositions of property that
yields gross proceeds to the Borrower or
any of its Subsidiaries in excess of
$50,000,000.
"Consolidated Net Income " means, for any
period, the consolidated net income (or
loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth " means, at any
date, all amounts that would, in conformity
with GAAP, be set forth opposite the
captions "minority interest" (or any like
caption) and "total stockholders' equity"
(or any like caption) on a consolidated
balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Total Assets " means at any
date, all amounts that would, in conformity
with GAAP, be set forth opposite the
caption "total assets" (or any like
caption) on a consolidated balance sheet of
the Borrower and its Subsidiaries at such
date.
"Consolidated Total Debt " means, at any
date, the aggregate principal amount of all
Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"Continuing Lenders" has the meaning
assigned to such term in Section 2.7(a).
"Control " means the possession, directly
or indirectl8y, 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.
"Conversion Date" shall mean any date on
which either (a) an Event of Default under
paragraph (h) or (i) of Article VII has
occurred with respect to the Borrower or
(b) the Commitments shall have been
terminated prior to the Maturity Date
and/or the Loans shall have been declared
immediately due and payable, in either case
pursuant to Article VII.
"Conversion Sharing Percentage" means on
any date with respect to any Lender and any
Revolving Loans of such Lender outstanding
in any currency other than Dollars, the
percentage of such Revolving Loans such
that, after giving effect to the conversion
of such Revolving Loans to Dollars and the
purchase and sale by such Lender of
participating interests as contemplated by
Section 9.14, the Committed Exposure
Percentage of such Lender will equal such
Lender's Applicable Percentage under the
Dollar Facility on such date (calculated
immediately prior to giving effect to any
termination or expiration of the
Commitments on the Conversion Date).
"Converted Loans" shall have the meaning
set forth in Section 9.14.
"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 3.6.
"Documentation Agents" has the meaning
assigned to such term in the preamble.
"Dollar Amount" means, at any time:
(a) with respect to any Loan denominated
in Dollars (including, with respect to any
Swingline Loan, any funded participation
therein), the principal amount thereof then
outstanding (or in which such participation
is held);
(b) with respect to any Alternative
Currency Loan, the principal amount thereof
then outstanding in the relevant
Alternative Currency, converted to Dollars
at the Exchange Rate determined by the
Administrative Agent on the date of
determination of a Dollar Amount; and
(c) with respect to any LC Exposure (or
any risk participation therein), the amount
thereof.
"Dollar Commitment " means, with respect to
each Lender, the commitment of such Lender
to make Dollar Revolving Loans and to
acquire participations in Letters of Credit
and 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 2.10, (b) reduced
or increased from time to time pursuant to
assignments by or to such Lender pursuant
to Section 9.4 or (c) increased from time
to time pursuant to Section 2.1(e). The
initial amount of each Lender's Dollar
Commitment is set forth on Schedule 2.1, or
in the Assignment and Acceptance pursuant
to which such Lender shall have assumed its
Dollar Commitment, as applicable.
"Dollar Facility" shall have the meaning
set forth in the definition of "Facility ".
"Dollar Lender" means each Lender holding a
Dollar Commitment.
"Dollar Revolving Loan" mean a Revolving
Loan made pursuant to Section 2.1(a).
"Dollars" or "$" refers to lawful money of
the United States of America.
"Domestic Subsidiary" means any Subsidiary
of the Borrower organized under the laws of
any jurisdiction within the United States.
"Effective Date" means the date on which
the conditions specified in Section 4.1 are
satisfied (or waived in accordance with
Section 9.2).
"EMU" means the economic and monetary union
in accordance with the Treaty of Rome 1957,
as amended by the Single Xxxxxxxx Xxx 0000,
the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative
measures of the European Council for the
introduction of, changeover to or operation
of a single or unified European currency.
"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.
"Environmental Liability" means any
liability, contingent or otherwise
(including any liability for damages, costs
of environmental remediation, fines,
penalties or indemnities), of the Borrower
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 Borrower, 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 Borrower 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 Borrower 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 Borrower 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 Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is,
or is expected to be, insolvent or in
reorganization, within the meaning of Title
IV of ERISA.
"Euro " and "EUR" means the lawful currency
of the Participating Member States
introduced in accordance with EMU Legislation.
"Euro Commitment" means, with respect to
each Lender, the commitment of such Lender
to make Euro Revolving Loans, as such
commitment may be (a) reduced from time to
time pursuant to Section 2.10, (b) reduced
or increased from time to time pursuant to
assignments by or to such Lender pursuant
to Section 9.4 or (c) increased from time
to time pursuant to Section 2.1(e). The
initial amount of each Lender's Euro
Commitment is set forth on Schedule 2.1, or
in th Assignment and Acceptance pursuant to
which such Lender shall have assumed its
Euro Commitment, as applicable.
"Euro Facility" shall have the meaning set
forth in the definition of "Facility". The
Euro Facility shall be a subfacility of the
Dollar Facility.
"Euro Lender" means each Lender holding a
Euro Commitment.
"Euro Revolving Loan" mean a Revolving Loan
made pursuant to Section 2.1(b).
"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
Eurocurrency Rate (or, in the case of a
Competitive Loan, the Eurocurrency Rate).
"Eurocurrency Rate" means, for any Interest
Period with respect to any Eurocurrency
Rate Loan:
(a) except with respect to Eurocurrency
Rate Loans denominated in Sterling, the
rate per annum equal to the rate determined
by the Administrative Agent to be the
offered rate that is quoted on the Reuters
Telerate screen for deposits in Dollars or
the relevant Alternative Currency (for
delivery on the first day of such Interest
Period) with a term equivalent to such
Interest Period, determined as of
approximately 11:00 a.m., London time, two
(2) Business Days (or, in the case of
Euros, TARGET Days) prior to the first day
of such Interest Period, or
(b) except with respect to Eurocurrency
Rate Loans denominated in Sterling, in the
event that such rate does not appear on the
Reuters Telerate screen (or otherwise on
such screen), the "Eurocurrency Rate" shall
be determined by reference to such other
comparable publicly available service for
displaying eurocurrency rates as may be
selected by the Administrative Agent or, in
the absence of such availability, by
reference to the rate at which the
Administrative Agent is offered deposits in
the applicable currency at or about 11:00
a.m., London time, two Business Days (or,
in the case of Euros, two TARGET Days)
prior to the beginning of such Interest
Period in the interbank eurocurrency market
where its eurocurrency and foreign currency
and exchange operations are then being
conducted for delivery on the first day of
such Interest Period for the number of days
comprised therein; or
(c) with respect to any Eurocurrency Rate
Loan denominated in Sterling, the rate at
which the Administrative Agent is offered
deposits in Sterling at or about 11:00
a.m., London time, two Business Days prior
to the beginning of such Interest Period in
the interbank eurocurrency market where its
eurocurrency and foreign currency and
exchange operations are then being
conducted for delivery on the first day of
such Interest Period for the number of days
comprised therein.
"Eurocurrency Rate Loan" means a Loan,
whether denominated in Dollars or in an
Alternative Currency, that bears interest
at a rate based on the Eurocurrency Rate.
"Event of Default" has the meaning assigned
to such term in Article VII.
"Exchange Rate" shall mean, with respect to
any Alternative Currency on a particular
date, the rate at which such Alternative
Currency may be exchanged into Dollars, as
set forth on such date on the applicable
Reuters currency page with respect to such
Alternative Currency. In the event that
such rate does not appear on the applicable
Reuters currency page, the Exchange Rate
with respect to such Alternative Currency
shall be determined by reference to such
other publicly available service for
displaying exchange rates as may be agreed
upon by the Administrative Agent and the
Borrower or, in the absence of such
agreement, such Exchange Rate shall instead
be JPMorgan Chase Bank's spot rate of
exchange in the London interbank or other
market where its foreign currency exchange
operations in respect of such Alternative
Currency are then being conducted, at or
about 10:00 a.m., local time, at such date
for the purchase of Dollars with such
Alternative Currency for delivery two
Business Days later; provided, however,
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 Taxes" means, with respect to
the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any
payment to be made by or on account of any
obligation of the Borrower hereunder, (a)
income or franchise taxes imposed on (or
measured by) its net income by the United
States of America, or by the jurisdiction
under the laws of which such recipient is
organized or in which its principal office
is located or, in the case of any Lender,
in which its applicable lending office is
located, (b) any branch profits taxes
imposed by the United States of America or
any similar tax imposed by any other
jurisdiction in which the Borrower is
located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to
a request by the Borrower under Section
2.20(b)), any withholding tax that is
imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender
becomes a party to this Agreement or is
attributable to such Foreign Lender's
failure to comply with Section 2.18(e),
except to the extent that such Foreign
Lender's assignor (if any) was entitled, at
the time of assignment, to receive
additional amounts from the Borrower with
respect to such withholding tax pursuant to
Section ""2.18(a).
"Existing Credit Agreement" means the
Credit Agreement, dated as of July 21, 2000
(as the same may be amended, supplemented
or otherwise modified from time to time),
among the Borrower, the banks and other
financial institutions from time to time
parties thereto, JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank), as
administrative agent, Bank of America,
N.A., as syndication agent, and Bank One,
N.A., as documentation agent.
"Extended Maturity Date" has the meaning
assigned to such term in Section 2.7(a).
"Extension Acceptance Notice" has the
meaning assigned to such term in Section
2.7(a).
"Extension Date" has the meaning assigned
to such term in Section 2.7(a).
"Extension Notice" has the meaning assigned
to such term in Section 2.7(a).
"Facility " means any of (a) the credit
facility constituted by the Dollar
Commitments and the extensions of credit
thereunder (the "Dollar Facility"), (b) the
credit facility constituted by the Euro
Commitments and the extensions of credit
thereunder (the "Euro Facility"), (c) the
credit facility constituted by the Sterling
Commitments and the extensions of credit
thereunder (the "Sterling Facility "), (d)
the credit facility constituted by the Yen
Commitments and the extensions of credit
thereunder (the "Yen Facility") and (e) the
credit facility constituted by the
Competitive Bids and the extensions of
credit thereunder (the "Competitive Bid
Facility").
"Federal Funds Effective Rate" means, for
any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal funds
brokers, as published on the next
succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate
is not so published for any day that is a
Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of
the quotations for such day for such
transactions received by the Administrative
Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief
financial officer, principal accounting
officer, treasurer or assistant treasurer
of the Borrower.
"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 any Lender that is
organized under the laws of a jurisdiction
other than that in which the Borrower is
located. For purposes of this definition,
the United States of America, each State
thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary
of the Borrower that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting
principles in the United States of America.
"Governmental Authority " means any
government or 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 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 include
the Indebtedness of any other entity
(including any partnership in which such
Person is a general partner) to the extent
such Person is liable therefor as a result
of such Person's ownership interest in or
other relationship with such entity, except
to the extent the terms of such
Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes" means Taxes other than
Excluded Taxes.
"Index Debt" means (i) senior, unsecured,
long-term indebtedness for borrowed money
of the Borrower that is not guaranteed by
any other Person or subject to any other
credit enhancement or (ii) if no
indebtedness of the type described in
clause (i) is outstanding, all senior,
unsecured, long-term indebtedness of the
Borrower (that is not guaranteed by any
other Person or subject to any other credit
enhancement) registered under an effective
shelf registration under Rule 415 of the
Securities Act of 1933, as amended.
"Interest Election Request" means a request
by the Borrower to convert or continue a
Revolving Borrowing in accordance with
Section 2.9.
"Interest Payment Date" means (a) with
respect to any ABR Loan (other than a
Swingline Loan), the last day of each
March, June, September and December, (b)
with respect to any Eurocurrency Loan, the
last day of the Interest Period applicable
to the Borrowing of which such Loan is a
part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more
than three months' duration, each day prior
to the last day of such Interest Period
that occurs at intervals of three months'
duration after the first day of such
Interest Period, (c) with respect to any
Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing
of which such Loan is a part and, in the
case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days'
duration (unless otherwise specified in the
applicable Competitive Bid Request), each
day prior to the last day of such Interest
Period that occurs at intervals of 90 days'
duration after the first day of such
Interest Period, and any other dates that
are specified in the applicable Competitive
Bid Request as Interest Payment Dates with
respect to such Borrowing and (d) with
respect to any Swingline Loan, the day that
such Loan is required to be repaid.
"Interest Period" means (a) with respect to
any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing
and ending on the numerically corresponding
day in the calendar month that is one, two,
three or six months thereafter, as the
Borrower may elect, and (b) with respect to
any Fixed Rate Borrowing, the period (which
shall not be less than 15 days or more than
180 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.
"Issuing Bank" means JPMorgan Chase Bank or
any of its Affiliates, in its capacity as
the issuer of Letters of Credit hereunder,
and its successors in such capacity as
provided in Section 2.6(i).
"Joint Lead Arrangers" means X.X. Xxxxxx
Securities Inc. and Banc of America
Securities LLC, as joint lead arrangers and
joint book managers for this Agreement.
"LC Disbursement" means a payment made by
the Issuing Bank pursuant to a Letter of
Credit.
"LC Exposure" means, at any time, the sum
of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time
plus (b) the aggregate amount of all LC
Disbursements that have not yet been
reimbursed by or on behalf of the Borrower
at such time. The LC Exposure of any
Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such
time.
"Lenders" means the Persons listed on
Schedule 2.1 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.
"Letter of Credit" means any letter of
credit issued pursuant to this Agreement.
Letters of Credit shall be a subfacility of
the Dollar Facility.
"Leverage Ratio" means, as at the last day
of any period, the ratio of (a)
Consolidated Total Debt on such day to (b)
Consolidated EBITDA for such 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,
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 Borrower pursuant to this Agreement.
"Loans to be Converted" shall have the
meaning set forth in Section 9.14(a).
"Margin" means, with respect to any
Competitive Loan bearing interest at a rate
based on the Eurocurrency Rate, the
marginal rate of interest, if any, to be
added to or subtracted from the
Eurocurrency 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, prospects or condition,
financial or otherwise, of the Borrower and
the Subsidiaries taken as a whole, (b) the
ability of the Borrower 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 and Letters of
Credit), or obligations in respect of one
or more Hedging Agreements, of any one or
more of the Borrower and its Subsidiaries
in an aggregate principal amount exceeding
$50,000,000. For purposes of determining
Material Indebtedness, the "principal
amount" of the obligations of the Borrower
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 Borrower or
such Subsidiary would be required to pay if
such Hedging Agreement were terminated at
such time.
"Maturity Date" means July 22, 2009, as
such date may be extended with respect to
any particular Lender pursuant to Section 2.7.
"Moodys" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer
plan as defined in Section 4001(a)(3) of
ERISA.
"Net Cash Proceeds" means in connection
with any issuance or sale of any common
equity, the cash proceeds received from
such issuance or incurrence, net of
attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts
and commissions and other customary fees
and expenses actually incurred in
connection therewith.
"Non-Extending Lenders" has the meaning
assigned to such term in Section 2.7(a).
"Notice Date" has the meaning assigned to
such term in Section 2.7(a).
"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.
"Overnight Rate" means, for any day, (a)
with respect to any amount denominated in
Dollars, the Federal Funds Effective Rate,
and (b) with respect to any amount
denominated in an Alternative Currency, the
rate of interest per annum at which
overnight deposits in the applicable
Alternative Currency, in an amount
approximately equal to the amount with
respect to which such rate is being
determined, would be offered for such day
by a branch or Affiliate of JPMorgan Chase
Bank in the applicable offshore interbank
market for such currency to major banks in
such interbank market.
"Participating Member State" means any
member state of the EMU which has the Euro
as its lawful currency.
"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 for taxes not yet due or which
are being contested in good faith by
appropriate proceedings, provided that
adequate reserves with respect thereto are
maintained on the books of the Borrower or
its Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of
Foreign Subsidiaries, generally accepted
accounting principles in effect from time
to time in their respective jurisdictions
of incorporation;
(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 5.4;
(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
(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
Borrower 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 Borrower 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 JPMorgan
Chase 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.
"Receivables Facility" means receivables financings
of the Borrower and its Subsidiaries in an
aggregate principal amount not to exceed
$200,000,000 at any one time outstanding for the
Borrower and the Domestic Subsidiaries,
$200,000,000 at any one time outstanding for the
Foreign Subsidiaries, or $300,000,000 at any one
time outstanding for the Borrower and its
Subsidiaries, which receivables financings shall be
upon terms and subject to conditions reasonably
satisfactory to the Required Lenders, but in any
event no less restrictive to the Borrower and its
Subsidiaries than those for any such receivables
financings in effect on the date hereof.
"Register" has the meaning set forth in Section 9.4.
"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. With respect to each Lender (other
than the Administrative Agent) and for the purpose
of Section 9.3, it is hereby understood that such
Lender's "agents" (as such term is used in the
preceding sentence) shall not include the
Administrative Agent or agents of the
Administrative Agent.
"Required Lenders" means, at any time, Lenders
having Dollar Commitments representing more than
50% of the total Dollar 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 Dollar
Commitments expire or terminate, "Required Lenders"
shall mean Lenders having Revolving Credit
Exposures representing more than 50% of the total
Revolving Credit Exposures and the outstanding
Competitive Loans of the Lenders shall be included
in their respective Revolving Credit Exposures in
determining the Required Lenders; provided that for
purposes of this definition the Revolving Credit
Exposure of each Lender shall be adjusted up or
down so as to give effect to any participations
purchased or sold pursuant to Section 9.14.
"Revolving Credit Exposure" means, with respect to
any Lender at any time, the Dollar Amount of the
sum of the outstanding principal amount of such
Lender's Revolving Loans and its LC Exposure and
Swingline Exposure at such time.
"Revolving Facility" means any of the Dollar
Facility, the Euro Facility, the Sterling Facility
or the Yen Facility.
"Revolving Loan" means a Loan made pursuant to
Section 2.3.
"Same Day Funds" means (a) with respect to
disbursements and payments in Dollars, immediately
available funds, and (b) with respect to
disbursements and payments in an Alternative
Currency, same day or other funds as may be
determined by the Administrative Agent, to be
customary in the place of disbursement or payment
for the settlement of international banking
transactions in the relevant Alternative Currency.
"S&P" means Standard & Poor's Ratings Services, a
division of the McGraw Hill Companies, Inc.
"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
eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be
available from time to time to any Lender under
such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of
any change in any reserve percentage.
"Sterling " and "Pound" means the lawful currency
of the United Kingdom.
"Sterling Commitment" means, with respect to each
Lender, the commitment of such Lender to make
Sterling Revolving Loans, as such commitment may be
(a) reduced from time to time pursuant to Section
2.10, (b) reduced or increased from time to time
pursuant to assignments by or to such Lender
pursuant to Section 9.4 or (c) increased from time
to time pursuant to Section 2.1(e). The initial
amount of each Lender's Sterling Commitment is set
forth on Schedule 2.1, or in the Assignment and
Acceptance pursuant to which such Lender shall have
assumed its Sterling Commitment, as applicable.
"Sterling Facility" shall have the meaning set
forth in the definition of "Facility". The
Sterling Facility shall be a subfacility of the
Dollar Facility.
"Sterling Lender" means each Lender holding a
Sterling Commitment.
"Sterling Revolving Loan" mean a Revolving Loan
made pursuant to Section 2.1(c).
"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 Borrower.
"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 Exposure at such
time.
"Swingline Lender" means JPMorgan Chase Bank, in
its capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to
Section 2.5. Swingline Loans shall be a
subfacility of the Dollar Facility.
"Swingline Rate" means, for any day, with respect
to any Swingline Rate Loan, the rate per annum
quoted by the Swingline Lender to the Borrower in
accordance with Section 2.5(b) as the rate at which
the Swingline Lender is willing to make such Loan.
"Swingline Rate Loans" means the Loans the rate of
interest applicable to which is based upon the
Swingline Rate.
"Syndication Agent" has the meaning assigned to
such term in the preamble.
"TARGET Day" means any day on which the
Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or if
such payment system ceases to be operative, such
other payment system (if any) determined by the
Administrative Agent to be a suitable replacement)
is open for the settlement of payments in Euro.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
"Transactions" means the execution, delivery and
performance by the Borrower of this Agreement, the
borrowing of Loans, the use of the proceeds thereof
and the issuance of Letters of Credit hereunder.
"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 Eurocurrency Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing,
the Eurocurrency 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.
"Yen" and "Y " means the lawful currency of Japan.
"Yen Commitment" means, with respect to each
Lender, the commitment of such Lender to make Yen
Revolving Loans, as such commitment may be (a)
reduced from time to time pursuant to Section 2.10,
(b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to
Section 9.4 or (c) increased from time to time
pursuant to Section 2.1(e). The initial amount of
each Lender's Yen Commitment is set forth on
Schedule 2.1, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed
its Yen Commitment, as applicable.
"Yen Facility" shall have the meaning set forth in
the definition of "Facility". The Yen Facility
shall be a subfacility of the Dollar Facility.
"Yen Lender" means each Lender holding a Yen
Commitment.
"Yen Revolving Loan" means a Revolving Loan made
pursuant to Section 2.1(d).
SECTION 1.2.__ Classification of Loans and
Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a
"Dollar Revolving Loan") or by Type (e.g., a
"Eurocurrency Loan") or by Class and6 Type (e.g., a
"Dollar Eurocurrency Revolving Loan"). Borrowings
also may be classified and referred to by Class
(e.g., a "Dollar Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and
Type (e.g., a "Dollar Eurocurrency Revolving
Borrowing ").
SECTION 1.3.__ 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 1.4.__ 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 Borrower
notifies the Administrative Agent that the Borrower
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 Borrower that
the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of
whether any such notice is given before or after
such change in GAAP or in the application thereof,
then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately
before such change shall have become effective
until such notice shall have been withdrawn or such
provision amended in accordance herewith.
SECTION 1.5.__ Change of Currency. (a) In
the event that the United Kingdom adopts the Euro
as its lawful currency after the date hereof,
immediately prior to the effective time of such
adoption the Sterling Commitments shall terminate
and all Sterling Revolving Loans and accrued
interest thereon shall be paid in full.
(b) Each provision of this
Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent
may from time to time specify after consultation
with the Borrower to be appropriate to reflect a
change in currency of any other country and any
relevant market conventions or practices relating
to such change in currency.
ARTICLE II
The Credits
SECTION 2.1._Commitments (a) Subject to the
terms and conditions set forth herein, each Dollar
Lender agrees to make Revolving Loans to the
Borrower denominated in Dollars (each such Loan, a
"Dollar Revolving Loan") from time to time during
the Availability Period in an aggregate principal
amount that will not result in (i) such Lender's
Revolving Credit Exposure under the Dollar
Commitments exceeding such Lender's Dollar
Commitment or (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans exceeding
the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and
reborrow Dollar Revolving Loans.
(b) Subject to the terms and conditions set forth
herein, each Euro Lender agrees to make Revolving
Loans to the Borrower denominated in Euros (each
such Loan, a "Euro Revolving Loan") from time to
time during the Availability Period in an aggregate
principal amount that will not result in (i) the
Dollar Amount of such Lender's Euro Revolving Loans
exceeding such Lender's Euro Commitment, (ii) the
sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding
Competitive Loans exceeding the total Dollar
Commitments or (iii) the Dollar Amount of Euro
Revolving Loans exceeding the applicable
Alternative Currency Sublimit. Within the
foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may
borrow, prepay and reborrow Euro Revolving Loans.
(c) Subject to the terms and conditions set forth
herein, each Sterling Lender agrees to make
Revolving Loans to the Borrower denominated in
Sterling (each such Loan, a "Sterling Revolving
Loan") from time to time during the Availability
Period in an aggregate principal amount that will
not result in (i) the Dollar Amount of such
Lender's Sterling Revolving Loans exceeding such
Lender's Sterling Commitment, (ii) the sum of the
total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans
exceeding the total Dollar Commitments or (iii) the
Dollar Amount of Sterling Revolving Loans exceeding
the applicable Alternative Currency Sublimit.
Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Sterling Revolving
Loans.
(d) Subject to the terms and conditions set forth
herein, each Yen Lender agrees to make Revolving
Loans to the Borrower denominated in Yen (each such
loan, a "Yen Revolving Loan") from time to time
during the Availability Period in an aggregate
principal amount that will not result in (i) the
Dollar Amount of such Lender's Yen Revolving Loans
exceeding such Lender's Yen Commitment, (ii) the
sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding
Competitive Loans exceeding the total Dollar
Commitments or (iii) the Dollar Amount of Yen
Revolving Loans exceeding the applicable
Alternative Currency Sublimit. Within the
foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may
borrow, prepay and reborrow Yen Revolving Loans.
(e) The Borrower may, from time to time, elect to
increase the Dollar Commitments hereunder on a
non-pro rata basis in an aggregate amount up to
$200,000,000; provided that (i) no Default or Event
of Default has occurred and is continuing, (ii)
each Lender which provides any portion of such
increase (an "Increasing Lender") must be
reasonably satisfactory to the Administrative
Agent, (iii) no Lender shall have Commitments in
excess of 20% of the total Commitments, unless
approved by the Borrower and the Administrative
Agent, and (iv) no Lender shall be obligated to
increase its Commitment pursuant to such election.
Each Increasing Lender may specify that its
increase in Commitments pursuant to this paragraph
shall also apply to the Euro Facility, the Sterling
Facility and/or the Yen Facility, and such
respective Facilities shall be increased by the
amount(s) so specified.
(f) Notwithstanding any other provision of this
Agreement to the contrary:
(i) The Lenders shall not be required to make
any Revolving Loans or Swingline Loans hereunder or
issue any Letter of Credit if, after giving effect
thereto, the Revolving Credit Exposure of any
Dollar Lender would exceed such Dollar Lender's
Dollar Commitment (unless such Dollar Lender
consents thereto); and
(ii) At the election of the Borrower and
the Administrative Agent, Dollar Revolving Loans
shall be made on the ratable basis of Available
Dollar Commitments (rather than on the basis of
Dollar Commitments) of the Dollar Lenders in the
event that the Dollar Lenders have disproportionate
commitments to the Euro Facility, the Sterling
Facility or the Yen Facility.
SECTION 2.2.__ Loans and Borrowings. (a)
Each Revolving Loan under a Facility shall be
made as part of a Borrowing consisting of Revolving
Loans made by the Lenders ratably in accordance
with their respective Commitments under such
Facility, subject to Section 2.1(f). Each
Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.4. 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 2.15, (i) each Revolving
Borrowing shall be comprised entirely of ABR Loans
or Eurocurrency Loans as the Borrower may request
in accordance herewith, (ii) each Competitive Loan
shall be comprised entirely of Eurocurrency Loans
or Fixed Rate Loans as the Borrower may request in
accordance herewith and (iii) each Swingline Loan
shall be an ABR Loan or a Swingline Rate 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 the 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 $5,000,000 (or comparable amounts determined
by the Administrative Agent in the case of
Alternative Currency). 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
$5,000,000; provided that an ABR Revolving Dollar
Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total
Dollar Commitments or that is required to finance
the reimbursement of an LC Disbursement as
contemplated by Section 2.6(e). Each Competitive
Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less
than $5,000,000. Each Swingline Loan shall be in
an amount that is an integral multiple of $100,000
and not less than $500,000. Notwithstanding
anything herein to the contrary, any borrowing of
Revolving Loans to be used solely to pay the
aggregate amount of Swingline Loans then
outstanding may be in the aggregate principal
amount of such Swingline Loans. 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 15 Eurocurrency
Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not 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 2.3.__ Requests for Revolving
Borrowings. To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a
Eurocurrency Borrowing, not later than 12:00 noon
New York City time (or 3:00 p.m. London, England
time in the case of any Borrowing denominated in an
Alternative Currency), three Business Days before
the date of the proposed Borrowing, and (b) in the
case of an ABR Borrowing, not later than 12:00
noon, New York City time, on the date of the
proposed Borrowing; provided that any such notice
of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated
by Section 2.6(e) may be given not later than 1:00
p.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy (or
transmitted by electronic communication, if
arrangements for doing so have been approved by the
Administrative Agent) to the Administrative Agent
of a written Borrowing Request in a form approved
by the Administrative Agent and signed by the
Borrower. Each such telephonic and written
Borrowing Request shall specify the following
information in compliance with Section 2.2:
(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) the currency in which such Borrowing is to be
denominated and the Facility under which such
Borrowing is to be made;
(v) 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
(vi) the location and number of the Borrower's
account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.8.
If no election as to the Type of Revolving
Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. If
no Interest Period is specified with respect to any
requested Eurocurrency Revolving Borrowing, then
the Borrower shall be deemed to have selected an
Interest Period of one month's duration. If no
currency or Facility is specified, the requested
Borrowing shall be in Dollars under the Dollar
Facility. 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. In making any determination of the
Dollar Amount for purposes of calculating the
amount of Loans to be borrowed from the respective
Lenders on any date, the Administrative Agent shall
use the relevant Exchange Rate in effect on the
date on which the Borrower delivers a borrowing
notice for such Loans pursuant to the provisions of
this Agreement.
SECTION 2.4.__ Competitive Bid Procedure. (a)
Subject to the terms and conditions set forth
herein, from time to time during the Availability
Period the Borrower may request Competitive Bids
(with specified maturities of not less than 15 or
more than 180 days) 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 aggregate
principal amount of outstanding Competitive Loans
at any time shall not exceed the total Dollar
Commitments. To request Competitive Bids, the
Borrower shall notify the Administrative Agent of
such request by telephone, in the case of a
Eurocurrency Borrowing, not later than 12:00 noon,
New York City time, four Business Days before the
date of the proposed Borrowing, and in the case of
a Fixed Rate Borrowing, not later than 12:00 noon,
New York City time, one Business Day before the
date of the proposed Borrowing; provided that the
Borrower may submit 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 (or transmitted by
electronic communication, if arrangements for doing
so have been approved by the Administrative Agent)
to the Administrative Agent of a written
Competitive Bid Request in a form approved by the
Administrative Agent and signed by the Borrower.
Competitive Loans shall be denominated in Dollars.
Each such telephonic and written Competitive Bid
Request shall specify the following information in
compliance with Section 2.2:
(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
(v) the location and number of the Borrower's
account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.8.
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
the 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, 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 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 and an integral multiple of
$1,000,000, and which may equal the entire
principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan
or Loans that the Lender is willing to make, (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) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) The Administrative Agent shall
promptly notify the 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, the Borrower may accept or
reject any Competitive Bid. The 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, 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 the Borrower to give such notice shall
be deemed to be a rejection of each Competitive
Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted
by the 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, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the
amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid
shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of
$1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances
of portions of multiple 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
the Borrower. A notice given by the 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 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 2.5.__Swingline Loans. (a) Subject to
the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to
the 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 $50,000,000
or (ii) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of
outstanding Competitive Loans exceeding the total
Dollar Commitments. Within the foregoing limits
and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) All Swingline Loans shall be made and
maintained as (i) ABR Loans or (ii) Swingline Rate
Loans and shall not be entitled to be converted
into Eurocurrency Loans. The Borrower may, on any
date of borrowing for Swingline Loans and prior to
the time that an irrevocable notice requesting such
Swingline Loans must be made pursuant to this
Section 2.5(b), request from the Swingline Lender a
quote of the Swingline Rate which would be
applicable for such Swingline Loans, specifying the
amount of the proposed Swingline Rate Loans and the
maturity date thereof (which shall be no less than
one and no more than five Business Days following
such date of borrowing). Upon receipt of such
quote, the Borrower shall promptly (but not later
than the time that an irrevocable notice requesting
such Swingline Loans must be made pursuant to this
Section 2.5(b)) notify the Swingline Lender and the
Administrative Agent whether it requests the
Swingline Lender to make Swingline Rate Loans at
such Swingline Rate. To request a Swingline Loan,
the Borrower shall notify the Administrative Agent
of such request by telephone (confirmed by telecopy
or by electronic communication (if arrangements for
doing so have been approved by the Administrative
Agent)), not later than 12:00 noon, New York, New
York 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), the amount of the requested
Swingline Loan and whether such Swingline Loan
shall be an ABR Loan or a Swingline Rate Loan. The
Administrative Agent will promptly advise the
Swingline Lender of any such notice received from
the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the
Borrower designated by the Borrower (or, in the
case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in
Section 2.6(e), by remittance to the Issuing Bank)
by 3:00 p.m., New York City time, on the requested
date of such Swingline Loan.
(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 irrevocable and
unconditional pro rata 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. In addition, upon the
occurrence of any of the events described in
paragraph (h), (i) or (j) of Article VII, each
Lender shall automatically acquire a participation
in all of the Swingline Loans then outstanding.
Promptly upon receipt of such notice or the
occurrence of any event described in paragraph (h),
(i) or (j) of Article VII, 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 2.8 with respect to Loans made by such
Lender (and Section 2.8 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 Borrower of
any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to
the Administrative Agent and not to the Swingline
Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf
of the 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 Borrower of any default in the payment
thereof.
SECTION 2.6.__ Letters of Credit (a)
. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its
own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability
Period. Letters of Credit shall be denominated in
Dollars. In the event of any inconsistency between
the terms and conditions of this Agreement and the
terms and conditions of any form of letter of
credit application or other agreement submitted by
the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement
shall control.
(b) Notice of Issuance, Amendment, Renewal,
Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of
Credit), the Borrower shall hand deliver or
telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by
the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date
of issuance, amendment, renewal or extension, the
date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and
such other information as shall be necessary to
prepare, amend, renew or extend such Letter of
Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit
application reasonably acceptable to the Issuing
Bank in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i)
the LC Exposure shall not exceed $50,000,000 and
(ii) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of
outstanding Competitive Loans shall not exceed the
total Dollar Commitments. Notwithstanding the
foregoing, the Issuing Bank will not issue any
Letter of Credit after it has received a written
notice from the Administrative Agent stating that
the conditions precedent set forth in Section
4.2(b) for the issuance of Letters of Credit will
not be satisfied. The Administrative Agent agrees
to withdraw any such notice promptly following its
determination that such conditions precedent will
be satisfied.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the
earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter
of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any
further action on the part of the Issuing Bank or
the Lenders, the Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage
of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the
Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due
as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded
to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any
circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or 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.
(e) Reimbursement. If the Issuing Bank shall make
any LC Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent
an amount equal to such LC Disbursement not later
than 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Borrower
shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by
the Borrower prior to such time on such date, then
not later than 12:00 noon, New York City time, on
(i) the Business Day that the Borrower receives
such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of
receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such
notice, if such notice is not received prior to
such time on the day of receipt; provided that the
Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance
with Section 2.3 or 2.5 that such payment be
financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall
notify each Lender of the applicable LC
Disbursement, the payment then due from the
Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to
the Administrative Agent its Applicable Percentage
of the payment then due from the Borrower, in the
same manner as provided in Section 2.8 with respect
to Loans made by such Lender (and Section 2.8 shall
apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly
following receipt by the Administrative Agent of
any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to
the extent that Lenders have made payments pursuant
to this paragraph to reimburse the Issuing Bank,
then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's
obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms
of this Agreement under any and all circumstances
whatsoever and irrespective of:
(i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or
provision therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any
Letter of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense
or other right that the Borrower, any other party
guaranteeing, or otherwise obligated with, the
Borrower, any Subsidiary or other Affiliate thereof
or any other Person may at any time have against
the beneficiary under any Letter of Credit, the
Issuing Bank, the Administrative Agent or any
Lender or any other Person, whether in connection
with this Agreement or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent
or invalid in any respect or any statement therein
being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other
document that does not comply with the terms of
such Letter of Credit; and
(vi) any other act or omission to act or delay of
any kind of the Issuing Bank, the Lenders, the
Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute
a legal or equitable discharge of the Borrower's
obligations hereunder.
Neither the Administrative Agent, the Lenders nor
the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by
reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or
failure to make any payment thereunder, including
any of the circumstances specified in clauses (i)
through (vi) above, as well as any error, omission,
interruption, loss or delay in transmission or
delivery of any draft, notice or other
communication under or relating to any Letter of
Credit (including any document required to make a
drawing thereunder), any error in interpretation of
technical terms or any consequence arising from
causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the
Borrower to the extent of any damages suffered by
the Borrower that are caused by the Issuing Bank's
failure to exercise the agreed standard of care (as
set forth below) in determining whether drafts and
other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto
expressly agree that the Issuing Bank shall have
exercised the agreed standard of care in the
absence of gross negligence or willful misconduct
on the part of the Issuing Bank. Without limiting
the generality of the foregoing, it is understood
that the Issuing Bank may accept documents that
appear on their face to be in compliance with the
terms of a Letter of Credit, without responsibility
for further investigation, regardless of any notice
or information to the contrary, and may make
payment upon presentation of documents that appear
on their face to be in compliance with the terms of
such Letter of Credit; provided that the Issuing
Bank shall have the right, in its sole discretion,
to decline to accept such documents and to make
such payment if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank
shall, promptly following its receipt thereof,
examine all documents purporting to represent a
demand for payment under a Letter of Credit. The
Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone
(confirmed by telecopy or by electronic
communication (if arrangements for doing so have
been approved by the Administrative Agent and the
Borrower)) of such demand for payment and whether
the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to
any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall
make any LC Disbursement, then, unless the Borrower
shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day
from and including the date such LC Disbursement is
made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per
annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.14(e) shall
apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank,
except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall
be for the account of such Lender to the extent of
such payment.
(i) Replacement of the Issuing Bank. The
Issuing Bank may be replaced at any time by written
agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall
notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement
shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.13(b). From and
after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the
rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to
be issued thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to
such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks,
as the context shall require. After the
replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it
prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of
Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing
greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of
the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall
become effective immediately, and such deposit
shall become immediately due and payable, without
demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to
the Borrower described in clause (h), (i) or (j) of
Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent
shall have exclusive dominion and control,
including the exclusive right of withdrawal, over
such account. Other than any interest earned on
the investment of such deposits, which investments
shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower's risk
and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such
account shall be applied by the Administrative
Agent to the payment of drafts drawn under all
Letters of Credit with respect to which presentment
for honor shall not have occurred by the time the
Borrower received such notice demanding the deposit
of cash collateral, and the unused portion thereof
after all such Letters of Credit shall have expired
or been fully drawn upon, if any, shall be applied
to repay principal of and interest on each Loan and
all other fees payable hereunder. If the Borrower
is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied
as aforesaid) shall be returned to the Borrower (i)
within three Business Days after all Events of
Default have been cured or waived or (ii) after (A)
the Commitments have expired or terminated, (B) the
principal of and interest on each Loan and all fees
payable hereunder have been paid in full, (C) all
Letters of Credit have expired or terminated and
(D) all LC Disbursements shall have been reimbursed.
SECTION 2.7.__Extension of Maturity Date. (a)
The Borrower may, by written notice to the
Administrative Agent (such notice being an
"Extension Notice") given at any time, from time to
time but in any event, no later than 45 days prior
to the Maturity Date then in effect (the date of
such notice, the "Notice Date"), request the
Lenders to extend the then applicable Maturity Date
to a date specified in the Extension Notice (the
"Extended Maturity Date "). The Administrative
Agent shall promptly transmit any Extension Notice
to each Lender. Each Lender shall notify the
Administrative Agent whether it wishes to extend
the then applicable Maturity Date no later than
twenty days after the Notice Date, and any such
notice given by a Lender to the Administrative
Agent, once given, shall be irrevocable as to such
Lender. The Administrative Agent shall promptly
notify the Borrower of each Lender's notice that it
wishes to extend (each, an "Extension Acceptance
Notice"). Any Lender which does not expressly
notify the Administrative Agent during such twenty
day period that it wishes to so extend the then
applicable Maturity Date shall be deemed to have
rejected the Borrower's request for extension of
such Maturity Date. Lenders consenting to extend
the then applicable Maturity Date are hereinafter
referred to as "Continuing Lenders ", and Lenders
declining to consent to extend such Maturity Date
(or Lenders deemed to have so declined) are
hereinafter referred to as "Non-Extending Lenders
". If the Required Lenders have elected (in their
sole and absolute discretion) to so extend the
Maturity Date, the Administrative Agent shall
notify the Borrower of such election by such
Required Lenders no later than five days after the
date when Extension Acceptance Notices are due, and
effective on the date of such notice by the
Administrative Agent to the Borrower (the
"Extension Date"), the Maturity Date shall be
automatically and immediately so extended to the
Extended Maturity Date. No extension will be
permitted hereunder without the consent of the
Required Lenders and in no event shall the period
from the Extension Date to the Extended Maturity
Date exceed five years. Upon the delivery of an
Extension Notice and upon the extension of the
Maturity Date pursuant to this Section 2.7, the
Borrower shall be deemed to have represented and
warranted on and as of the Notice Date and the
Extension Date, as the case may be, that no Default
or Event of Default has occurred and is continuing.
Notwithstanding anything contained in this
Agreement to the contrary, no Lender shall have any
obligation to extend the Maturity Date, and each
Lender may at its option, unconditionally and
without cause, decline to extend the Maturity Date.
(b) If the Maturity Date shall have been
extended in accordance with Section 2.7(a), all
references herein to the "Maturity Date" shall
refer to the Extended Maturity Date.
(c) If any Lender shall determine not to extend
the Maturity Date as requested by any Extension
Notice given by the Borrower pursuant to Section
2.7(a), the Commitments of such Lender and its
participation obligations under Sections 2.5(c) and
2.6(d) (except in respect of unreimbursed drawings
under Letters of Credit having an expiry date prior
to the Maturity Date) shall terminate on the
Maturity Date without giving any effect to such
proposed extension, and the Borrower shall on such
date pay to the Administrative Agent, for the
account of such Lender, the principal amount of,
and accrued interest on, such Lender's Loans,
together with any fees or other amounts owing to
such Lender under this Agreement; provided that if
the Borrower has replaced such Non-Extending Lender
pursuant to Section 2.7(d) below, then the
provisions of Section 2.7(d) shall apply. The
total Commitments under each Revolving Facility
shall be reduced by the amount of the Commitment of
such Non-Extending Lender under such Revolving
Facility to the extent the Commitment of such
Non-Extending Lender under such Revolving Facility
has not been transferred to one or more Continuing
Lenders pursuant to Section 2.7(d) below.
(d) A Non-Extending Lender shall be
obligated, at the request of the Borrower and
subject to payment by the Borrower to the
Administrative Agent for the account of such
Non-Extending Lender of the principal amount of,
and accrued interest on, such Lender's Loans,
together with any fees or other amounts owing to
such Lender under this Agreement, to transfer
without recourse, representation or warranty (other
than good title to its Loans), at any time prior to
the Maturity Date applicable to such Non-Extending
Lender, all of its rights and obligations hereunder
to another financial institution or group of
financial institutions nominated by the Borrower
and willing to participate in the Commitments in
the place of such Non-Extending Lender; provided
that, if such transferee is not a Lender, such
transferee(s) satisfies all the requirements of
this Agreement and the Administrative Agent shall
have consented to such transfer, which consent
shall not be unreasonably withheld. Each such
transferee shall become a Continuing Lender
hereunder in replacement of the Non-Extending
Lender, with the Maturity Date applicable to such
Continuing Lender's Commitments being the Extended
Maturity Date, and shall enjoy all rights and
assume all obligations on the part of the Lenders
set forth in this Agreement. Simultaneously with
such transfer, each such transferee shall execute
and deliver to the Administrative Agent a written
agreement assuming all obligations of the Lenders
set forth in this Agreement, which agreement shall
be reasonably satisfactory in form and substance to
the Administrative Agent.
(e) If the Maturity Date shall have been extended
in respect of the Continuing Lenders in accordance
with Section 2.7(a) any notice of borrowing
pursuant to Section 2.3, 2.4 or 2.5 specifying a
borrowing date occurring after the Maturity Date
applicable to a Non-Extending Lender or requesting
an Interest Period extending beyond such date (a)
shall have no effect in respect of such
Non-Extending Lender and (b) shall not specify a
requested aggregate principal amount exceeding the
total applicable Commitments.
SECTION 2.8.__ Funding of Borrowings. (a)
Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire
transfer of Same Day Funds by 2:00 p.m., New York
City time, in the case of any Loan denominated in
Dollars, and by the Applicable Time specified by
the Administrative Agent, in the case of any Loan
denominated in an Alternative Currency, 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 2.5. The
Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts
so received, in like funds, to an account of the
Borrower designated by the Borrower in the
applicable Borrowing Request or Competitive Bid
Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as
provided in Section 2.6(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(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 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 in Same Day Funds, then the
applicable Lender and the 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 Borrower to
but excluding the date of payment to the
Administrative Agent, in Same Day Funds at (i) in
the case of such Lender, the applicable Overnight
Rate from time to time in effect and (ii) in the
case of the Borrower, the interest rate on the
applicable Borrowing. If such Lender pays such
amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included
in such Borrowing.
SECTION 2.9.__ Interest Elections
(a) Each Revolving Borrowing denominated in
Dollars initially shall be of the Type and under
the Facility 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 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. The
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.
(b) Each Revolving Borrowing denominated in an
Alternative Currency shall have an initial Interest
Period as specified in the applicable Borrowing
Request. Thereafter, the Borrower may elect to
continue such Borrowing and may elect Interest
Periods thereafter, all as provided in this
Section. The Borrower may elect different Interest
Periods with respect to different portions of the
affected Borrowing, in which case 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.
(c) To make an election pursuant to this
Section, the Borrower shall notify the
Administrative Agent of such election by telephone
or by electronic communication (if arrangements for
doing so have been approved by the Administrative
Agent) by the time that a Borrowing Request would
be required under Section 2.3 if the 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 or by electronic communication
(if arrangements for doing so have been approved by
the Administrative Agent) to the Administrative
Agent of a written Interest Election Request in a
form approved by the Administrative Agent and
signed by the Borrower.
(d) Each telephonic and written Interest
Election Request shall specify the following
information in compliance with Section 2.2:
(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) in the case of Borrowings denominated in
Dollars, 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 the Borrower shall be deemed
to have selected an Interest Period of one month's
duration.
(e) Promptly following receipt of an Interest
Election Request, the Administrative Agent shall
advise each applicable Lender of the details
thereof and of such Lender's portion of each
resulting Borrowing.
(f) If the 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 (i) such
Borrowing shall be converted to an ABR Borrowing if
it is denominated in Dollars or (ii) such Borrowing
shall be continued as such for an Interest Period
of one month if it is denominated in an Alternative
Currency. 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
Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing
denominated in Dollars may be converted to or
continued as a Eurocurrency Borrowing, (ii) unless
repaid, each Eurocurrency Revolving Borrowing
denominated in Dollars shall be converted to an ABR
Borrowing at the end of the Interest Period
applicable thereto and (iii) each Eurocurrency
Revolving Borrowing denominated in an Alternative
Currency may be continued as such for an Interest
Period of one month.
SECTION 2.10.__ Termination and Reduction of
Commitments. (a) Unless previously terminated,
the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or
from time to time reduce, the Dollar Commitments;
provided that (i) each reduction of the Dollar
Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not
terminate or reduce the Dollar Commitments if, (A)
after giving effect to any concurrent prepayment of
the Loans, the sum of the Revolving Credit
Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the
total Commitments or (B) the Dollar Commitments as
so reduced would be less than the aggregate Euro
Commitments, Sterling Commitments or Yen Commitments.
(c) The Borrower may at any time terminate, or
from time to time reduce, the Euro Commitments;
provided that (i) each reduction of the Euro
Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not
terminate or reduce the Euro Commitments if, after
giving effect to any concurrent prepayment of the
Loans, the Dollar Amount of the aggregate principal
amount of outstanding Euro Revolving Loans would
exceed the total Euro Commitments.
(d) The Borrower may at any time terminate, or
from time to time reduce, the Sterling Commitments;
provided that (i) each reduction of the Sterling
Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not
terminate or reduce the Sterling Commitments if,
after giving effect to any concurrent prepayment of
the Loans, the Dollar Amount of the aggregate
principal amount of outstanding Sterling Revolving
Loans would exceed the total Sterling Commitments.
(e) The Borrower may at any time terminate, or
from time to time reduce, the Yen Commitments;
provided that (i) each reduction of the Yen
Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not
terminate or reduce the Yen Commitments if, after
giving effect to any concurrent prepayment of the
Loans, the Dollar Amount of the aggregate principal
amount of outstanding Yen Revolving Loans would
exceed the total Yen Commitments.
(f) The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the
Commitments under paragraph (b), (c), (d) or (e) 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 applicable Lenders of the contents
thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable;
provided that a notice of termination of any
Commitments delivered by the Borrower may state
that such notice is conditioned upon the
effectiveness of other credit facilities, in which
case such notice may be revoked by the Borrower (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
any Commitments shall be made ratably among the
applicable Lenders in accordance with their
respective applicable Commitments.
SECTION 2.11.__ Repayment of Loans; Evidence of
Debt. (a) The 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 on the
Maturity Date, (ii) to the Administrative Agent for
the account of each Lender the then unpaid
principal amount of each Competitive Loan 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 on
the Maturity Date.
(b) Each Lender shall maintain in accordance
with its usual practice an account or accounts
evidencing the indebtedness of the 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, Type and
Facility thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or
interest due and payable or to become due and
payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section
shall be prima facie evidence of the existence and
amounts of the obligations recorded therein;
provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect
the obligation of the 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,
the 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.
Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times
(including after assignment pursuant to Section
9.4) 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 2.12. Prepayment of Loans. (a) The
Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with
paragraph (b) of this Section; provided that the
Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the
Lender thereof.
(b) The Borrower shall notify the
Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy or by
electronic communication (if arrangements for doing
so have been approved by the Administrative Agent,
and in the case of a prepayment of a Swingline
Loan, the Swingline Lender)) 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 2:00 p.m.
London, England time in the case of Loans
denominated in an Alternative Currency), 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 any Commitments as contemplated by
Section 2.10, then such notice of prepayment may be
revoked if such notice of termination is revoked in
accordance with Section 2.10. Promptly following
receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise
the applicable 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 2.2. 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 2.14.
(c) If on the last day of any fiscal quarter of
the Borrower for any reason the sum of the total
Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeds the total Dollar
Commitments then in effect by more than 5%, the
Borrower shall upon learning thereof, or upon the
request of the Administrative Agent, immediately
prepay Revolving Loans and cancel or reduce Letters
of Credit, in an aggregate principal amount at
least equal to the amount of such excess.
(d) If on the last day of any fiscal quarter of
the Borrower for any reason the Dollar Amount of
the aggregate principal amount of outstanding Euro
Revolving Loans exceeds the total Euro Commitments
then in effect by more than 5%, the Borrower shall
upon learning thereof, or upon request of the
Administrative Agent, immediately prepay Euro
Revolving Loans in an aggregate principal amount at
least equal to the amount of such excess.
(e) If on the last day of any fiscal quarter of
the Borrower for any reason the Dollar Amount of
the aggregate principal amount of outstanding
Sterling Revolving Loans exceeds the total Sterling
Commitments then in effect by more than 5%, the
Borrower shall upon learning thereof, or upon
request of the Administrative Agent, immediately
prepay Sterling Revolving Loans in an aggregate
principal amount at least equal to the amount of
such excess.
(f) If on the last day of any fiscal quarter of
the Borrower for any reason the Dollar Amount of
the aggregate principal amount of outstanding Yen
Revolving Loans exceeds the total Yen Commitments
then in effect by more than 5%, the Borrower shall
upon learning thereof, or upon request of the
Administrative Agent, immediately prepay Yen
Revolving Loans in an aggregate principal amount at
least equal to the amount of such excess.
(g) The Borrower will implement and maintain
internal controls to monitor the Borrowings and
repayments, with the object of preventing any
request for a Borrowing that would cause conditions
specified in the first sentences of Sections
2.1(a), (b) (c) and (d), 2.4(a) and 2.5(a) and the
last sentence of Section 2.6(b) not to be satisfied.
(h) The Administrative Agent shall calculate the
Dollar Amount of any Alternative Currency on the
date of each Borrowing of Revolving Loans and on
the last Business Day of each calendar quarter and
may do so more frequently from time to time in its
sole discretion.
SECTION 2.13.__ Fees (a) The Borrower
agrees to pay to the Administrative Agent for the
account of each Dollar Lender a facility fee, which
shall accrue at the Applicable Rate on the daily
amount of the Dollar Commitment of such Lender
(whether used or unused) during the period from and
including the Effective Date to but excluding the
date on which such Dollar Commitment terminates;
provided that, if such Lender continues to have any
Revolving Credit Exposure after its Dollar
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 Dollar 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 Dollar 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 Dollar
Commitments terminate shall be payable on demand.
All facility fees shall be computed on the basis of
a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days
elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Lender
a participation fee with respect to its
participations in Letters of Credit, which shall
accrue at a rate per annum equal to the Applicable
Rate applicable to interest on Eurocurrency
Revolving Loans on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements)
during the period from and including the Effective
Date to but excluding the later of the date on
which such Lender's Commitment terminates and the
date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.10% per
annum on the average daily amount of the LC
Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements)
during the period from and including the Effective
Date to but excluding the later of the date of
termination of the Commitments and the date on
which there ceases to be any LC Exposure, as well
as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees
accrued through and including the last day of
March, June, September and December of each year
shall be payable on the third Business Day
following such last day, commencing on the first
such date to occur after the Effective Date;
provided that all such fees shall be payable on the
date on which the Commitments terminate and any
such fees accruing after the date on which the
Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant
to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting
fees shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and shall be
payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender
a utilization fee in the amount of 0.125% per annum
of the Dollar Amount of outstanding principal
amount of the Loans and Letters of Credit for each
day that the Dollar Amount of outstanding principal
amount of the Loans and the Letters of Credit
exceeds 50% of the aggregate amount of the Dollar
Commitments then in effect (or, after the Dollar
Commitments have terminated, 50% of the aggregate
amount of the Dollar Commitments immediately prior
to such termination). Accrued utilization 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 Dollar Commitments
terminate, commencing on the first such date to
occur after the date hereof; provided that any
utilization fees accruing after the date on which
the Dollar Commitments terminate shall be payable
on demand. All utilization fees shall be computed
on the basis of a year of 365 days (or 366 days in
a leap year) and shall be payable for the actual
number of days elapsed (including the first day but
excluding the last day).
(d) The Borrower 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 Borrower and the
Administrative Agent.
(e) All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to
the Administrative Agent (or to the Issuing Bank,
in the case of fees payable to it) for
distribution, in the case of facility fees and
participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 2.14.__ Interest. (a) The Loans
comprising each ABR Borrowing (including each
Swingline Loan maintained as an ABR 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 Eurocurrency 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 Eurocurrency
Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at
a rate per annum equal to the Fixed Rate applicable
to such Loan.
(d) Each Swingline Rate Loan not maintained as an
ABR Loan shall bear interest at a rate per annum
equal to the Swingline Rate applicable to such Loan.
(e) Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is
not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount
shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the
case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided
above or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided
above.
(f) 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 (c) 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.
(g) 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 and Overnight Rates (except
the Federal Funds Effective Rate, which shall be
computed on the basis of a year of 360 days) 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
Eurocurrency Rate, Eurocurrency Rate and Overnight
Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.15.__ 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
error) that adequate and reasonable means do not
exist for ascertaining the Adjusted Eurocurrency
Rate or the Eurocurrency Rate, as applicable, for
the relevant currency for such Interest Period; or
(b) the Administrative Agent is advised by the
Required Lenders or by the holders of at least a
majority of the Commitments under a Facility (or,
in the case of a Eurocurrency Competitive Loan, the
Lender that is required to make such Loan) that the
Adjusted Eurocurrency Rate or the Eurocurrency
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; then the Administrative Agent
shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the
Administrative Agent notifies the Borrower 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, (ii) if any Borrowing Request
requests a Eurocurrency Revolving Borrowing, such
Borrowing, if denominated in Dollars, shall be made
as an ABR Borrowing and, if denominated in an
Alternative Currency, shall be made as a Borrowing
bearing interest at an interest rate reasonably
determined by the Administrative Agent, after
consultation with the Borrower and the applicable
Lenders, to compensate the applicable Lenders for
such Borrowing in such currency for the applicable
period and (iii) any request by the Borrower for a
Eurocurrency Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances
giving rise to such notice do not affect all the
Lenders, then requests by the Borrower for
Eurocurrency Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if
the circumstances giving rise to such notice affect
only one Type of Borrowings, then any other
available Type of Borrowings for the applicable
currency shall be permitted.
SECTION 2.16.__ Increased Costs (a) If any
Change in Law shall:
(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
Eurocurrency Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or
the London interbank market any other condition
affecting this Agreement or Eurocurrency Loans or
Fixed Rate Loans made by such Lender or any Letter
of Credit or participation therein; 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 increase the cost to such Lender or the
Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank 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 or the
Issuing Bank's capital or on the capital of such
Lender's or the Issuing Bank's holding company, if
any, as a consequence of this Agreement or the
Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company
could have achieved but for such Change in Law
(taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such
Lender's or the Issuing Bank's holding company with
respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or
the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing
Bank setting forth the amount or amounts necessary
to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the
case may be, 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 or
the Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of such
Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not
be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased
costs or reductions incurred more than six months
prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the
Issuing Bank'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
prior to submission of the Competitive Bid pursuant
to which such Loan was made.
SECTION 2.17. 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 Revolving
Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice
is permitted to be revocable under Section 2.12(b)
and is revoked in accordance herewith), (d) the
failure to borrow any 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 Borrower pursuant to Section 2.20,
then, in any such event, the Borrower 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 for the
period from the date of such payment, conversion,
failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue,
the duration of the Interest Period that would have
resulted from such borrowing, conversion or
continuation) if the interest rate payable on such
deposit were equal to the Adjusted Eurocurrency
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
dollar deposits from other banks in the
Eurocurrency market at the commencement of such
period. A certificate of any Lender setting forth
(i) any amount or amounts that such Lender is
entitled to receive pursuant to this Section and
(ii) the calculations used to arrive at such amount
shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt
thereof.
SECTION 2.18.__Taxes. (a) Any and all payments by
or on account of any obligation of the Borrower
hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or
Other Taxes; provided that if the 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,
Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall
pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify
the Administrative Agent, each Lender and the
Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or
the Issuing Bank, as the case may be, and any
penalties, interest and 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 Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after
any payment of Indemnified Taxes or Other Taxes by
the Borrower to a Governmental Authority, the
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 under the law of the jurisdiction
in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law
or reasonably requested by the Borrower, such
properly completed and executed documentation
prescribed by applicable law as will permit such
payments to be made without withholding or at a
reduced rate.
SECTION 2.19.__ Payments Generally; Pro Rata
Treatment; Sharing of Set-offs. (a) Except as
otherwise expressly provided herein, the Borrower
shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section
2.16, 2.17 or 2.18, or otherwise) prior to 12:00
noon, New York, New York time (or as specified in
the next sentence in the case of Loans denominated
in an Alternative Currency), on the date when due,
in Same Day Funds, without set-off or counterclaim.
Except as otherwise expressly provided herein, all
payments by the Borrower hereunder with respect to
principal and interest on Loans denominated in an
Alternative Currency shall be made on the dates
specified herein for the account of the respective
Lenders to whicsuch payment is owed, in such
Alternative Currency and in Same Day Funds not
later than the Applicable Time specified by the
Administrative Agent to the Borrower by the same
time at least one Business Day prior to the date
when due. If, for any reason, the Borrower is
prohibited by law from making any required payment
hereunder in an Alternative Currency, such Borrower
shall make such payment in Dollars in the Dollar
Amount of the Alterative Currency payment amount.
All payments received by the Administrative Agent
(i) after 12:00 p.m., in the case of payments in
Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case
of payments in an Alternative Currency, 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 to the
Administrative Agent at its offices at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be
made directly to the Issuing Bank or Swingline
Lender as expressly provided herein and except that
payments pursuant to Sections 2.16, 2.17, 2.18 and
9.3 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 payments made by the Borrower
hereunder shall be made in the applicable currency,
except as otherwise provided in this paragraph.
(b) If at any time insufficient
funds are received by and available to the
Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, 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 and unreimbursed LC Disbursements
then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then
due to such parties.
(c) Except to the extent that this
Agreement provides for payments to be allocated to
a particular Lender or to the Lenders under a
particular Facility, 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 LC Disbursements or
Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate
amount of its Revolving Loans and participations in
LC Disbursements and 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 LC Disbursements and 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 LC Disbursements and 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 the 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 or participations
in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of
this paragraph shall apply). The 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 the
Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in
the amount of such participation.
(d) Unless the Administrative Agent
shall have received notice from the Borrower prior
to the date on which any payment is due to the
Administrative Agent for the account of the Lenders
or the Issuing Bank hereunder that the Borrower
will not make such payment, the Administrative
Agent may assume that the Borrower has made such
payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute
to the applicable Lenders or the Issuing Bank, as
the case may be, the amount due. In such event, if
the Borrower has not in fact made such payment,
then each of the applicable Lenders or the Issuing
Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing
Bank 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, at the applicable Overnight
Rate from time to time in effect.
(e) If any Lender shall fail to
make any payment required to be made by it pursuant
to Section 2.5(c), 2.6(d) or (e), 2.8(b) or
2.19(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 2.20._Mitigation Obligations; Replacement
of Lenders. (a) If any Lender requests
compensation under Section 2.16, or if the Borrower
is required to pay any additional amount to any
Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18,
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 2.16 or 2.18, 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 Borrower 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 2.16, or if the Borrower
is required to pay any additional amount to any
Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18, or
if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower 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 9.4), all its interests,
rights and obligations under this Agreement (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
Borrower shall have received the prior written
consent of the Administrative Agent (and, if a
Dollar Commitment is being assigned, the Issuing
Bank and 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 LC
Disbursements and 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 Borrower (in the case of all other
amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation
under Section 2.16 or payments required to be made
pursuant to Section 2.18, 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 the Borrower
to require such assignment and delegation cease to
apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders
that:
SECTION 3.1.__ Organization; Powers. Each of
the Borrower and its 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 36.2.__ Authorization; Enforceability.
The Transactions are within the Borrower'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 Borrower and
constitutes a legal, valid and binding obligation
of the Borrower, 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.
SECTION 3.3.__ 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, (b) will not
violate any applicable law or regulation or the
charter, by-laws or other organizational documents
of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not
violate or result in a default under any indenture,
agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
SECTION 3.4.__ Financial Condition; No
Material Adverse Effect. (a) The Borrower has
heretofore furnished to the Lenders its
consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as
of and for the year ended December 31, 2003,
reported on by Deloitte & Touche LLP, independent
public accountants, and (ii) as of and for the
quarter ended March 31, 2004, certified by its
principal accounting officer. Such financial
statements present fairly, in all material
respects, the financial position and results of
operations and cash flows of the Borrower 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) Since March 31, 2004, there has been no
development or event which has had or could
reasonably be expected to have a Material Adverse
Effect except as disclosed on or prior to the
Effective Date (i) in writing to the Lenders, or
(ii) in any public filing with the Securities and
Exchange Commission.
SECTION 3.5.__ Properties. (a) Each of the
Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and
personal property material to its business, 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 Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other
intellectual property material to its business, and
the use thereof by the Borrower 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 3.6.__ Litigation and Environmental
Matters. (a) There are no actions, suits,
investigations or proceedings by or before any
arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower 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 or the Transactions.
(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 Borrower 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, or materially increased the likelihood
of, a Material Adverse Effect.
SECTION 3.7.__ Compliance with Laws and
Agreements. Each of the Borrower 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 3.8.__ Investment and Holding Company
Status. Neither the Borrower nor any of its
Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.9.__ Taxes. Each of the Borrower
and 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 Borrower
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 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
Statements of Financial Accounting Standards No. 87
and No. 132) did not, as of the date of the most
recent financial statements reflecting such
amounts, exceed by more than $90,000,000 the fair
market value of the assets of such Plan, and the
present value of all accumulated benefit
obligations of all underfunded Plans (based on the
assumptions used for purposes of Statements of
Financial Accounting Standards No. 87 and No. 132)
did not, as of the date of the most recent
financial statements reflecting such amounts,
exceed by more than $90,000,000 the fair market
value of the assets of all such underfunded Plans.
SECTION 3.11.__Federal Regulations. No part of the
proceeds of any Loans hereunder will be used,
directly or indirectly, for "buying" or "carrying"
any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of
the Board as now and from time to time hereafter in
effect which violates, or which would be
inconsistent with, the provisions of the
Regulations of such Board.
SECTION 3.12.__ Disclosure. The Borrower has
disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and
all other matters known to it, that, individually
or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. None of
the reports, financial statements, certificates or
other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender
in connection with the negotiation of this
Agreement or delivered hereunder (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 Borrower
represents only that such information was prepared
in good faith based upon assumptions believed to be
reasonable at the time.
ARTICLE IV
Conditions
SECTION 4.1.__ Effective Date. The
obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which
each of the following conditions is satisfied (or
waived in accordance with Section 9.2):
(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 Existing Credit Agreement (including the
commitments thereunder) shall have been terminated
and all amounts owed thereunder shall have been paid.
(c) The Administrative Agent shall have received
a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the
Effective Date) of the general counsel for the
Borrower, substantially in the form of Exhibit B,
and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the
Required Lenders shall reasonably request. The
Borrower hereby requests such counsel to deliver
such opinion.
(d) The Administrative Agent shall have received
all government and third party approvals necessary
or, in the discretion of the Administrative Agent,
advisable in connection with the financing
contemplated hereby.
(e) 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 the Borrower, the authorization of
the Transactions and any other legal matters
relating to the Borrower, this Agreement or the
Transactions, all in form and substance
satisfactory to the Administrative Agent and its
counsel.
(f) The Administrative Agent shall have received
a certificate, dated the Effective Date and signed
by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with
the conditions set forth in paragraphs (a) and (b)
of Section 4.2.
(g) The Lenders, the Administrative Agent and
the Joint Lead Arrangers 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 Borrower hereunder.
(h) The Borrower shall have made available to the
Lenders and the Administrative Agent, including
through electronic transmission (i) audited
consolidated financial statements of the Borrower
for the two most recent fiscal years ended prior to
the Effective Date as to which such financial
statements are available and (ii) unaudited interim
consolidated financial statements of the Borrower
for each quarterly period ended subsequent to the
date of the latest financial statements made
available pursuant to clause (i) of this paragraph
as to which such financial statements are available.
The Administrative Agent shall notify the Borrower
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 and of the Issuing Bank
to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to
Section 9.2) at or prior to 3:00 p.m., New York
City time, on August 2, 2004 (and, in the event
such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.2.__ Each Credit Event. The
obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank
to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the
Borrower set forth in this Agreement shall be true
and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving
effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have
occurred and be continuing.
Each Borrowing and each issuance, amendment,
renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this
Section.
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 and all Letters of Credit shall
have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants
and agrees with the Lenders that:
SECTION 5.1.__ Financial Statements and Other
Information. The Borrower will furnish to the
Administrative Agent and each Lender:
(a) within 90 days after the end of
each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements
of operations, stockholders' 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, all reported on by
Deloitte & Touche LLP 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 Borrower 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 Borrower, its consolidated balance sheet and
related statements of operations, stockholders'
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, all certified by one of its Financial
Officers as presenting fairly in all material
respects the financial condition and results of
operations of the Borrower 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) concurrently with any delivery of financial
statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower
(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 Section 6.1 and (iii) stating
whether any change in GAAP or in the application
thereof has occurred since the date of the audited
financial statements referred to in Section 3.4
and, if any such change has occurred, specifying
the effect of such change on the financial
statements accompanying such certificate;
(d) 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);
(e) promptly after the same become publicly
available, copies of all periodic and other
financial reports, proxy statements and other
financial materials filed by the Borrower 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 Borrower to its
shareholders generally, as the case may be; and
(f) promptly following any request therefor, such
other information regarding the operations,
business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative
Agent or any Lender may reasonably request.
The requirements of Sections 5.1(a), (b) and (e)
shall be deemed to be satisfied if the Borrower
shall have made such materials available to the
Lenders and the Administrative Agent, including by
electronic transmission, within the time periods
specified therefor, in which case "delivery" of
such statements for purposes of Section 5.1(c) and
(d) shall mean making such statements available in
such fashion.
SECTION 5.2.__Notices of Material Events. The
Borrower 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 Borrower or any Affiliate thereof
that 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 a Material Adverse Effect; and
(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 Borrower 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 5.3.__Existence; Conduct of Business. The
Borrower will, and will cause each of its
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 its business; provided
that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted
under Section 6.4.
SECTION 5.4.__ Payment of Obligations. The
Borrower 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
Borrower 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 5.5.__Maintenance of Properties; Insurance.
The Borrower will, and will cause each of its
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.
SECTION 5.6.__Books and Records; Inspection Rights.
The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are
made of all dealings and transactions in relation
to its business and activities. The Borrower will,
and will cause each of its Subsidiaries to, permit
any representatives designated by the
Administrative Agent or any Lender, 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 5.7.__ Compliance with Laws. The
Borrower 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, 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 5.8.__ Use of Proceeds and Letters of
Credit. The proceeds of the Loans will be used for
general corporate purposes of the Borrower and its
Subsidiaries, including, without limitation, to
repurchase the Borrowers Capital Stock and
debentures, to finance investments and acquisitions
and to provide working capital to the Borrower and
its Subsidiaries. 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
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
and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been
reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.1.__ Financial Covenants
(a) Leverage Ratio. The Borrower will
not permit the Leverage Ratio as at the last day of
any period of four consecutive fiscal quarters of
the Borrower to exceed 3.25 to 1.00.
(b) Consolidated Net Worth. The Borrower
will not permit Consolidated Net Worth at any time
to be less than the sum of (i) $800,000,000, (ii)
25% of cumulative Consolidated Net Income for each
fiscal quarter of the Borrower (beginning with the
fiscal quarter ending September 30, 2004) for which
Consolidated Net Income is positive and (iii) 100%
of the Net Cash Proceeds of any common equity
issued by the Borrower after the Effective Date.
SECTION 6.2.__Liens. The Borrower 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 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 Borrower or any Subsidiary existing on
the date hereof and set forth in Schedule 6.2;
provided that (i) such Lien shall not apply to any
other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date
hereof and extensions, renewals and replacements
thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any
property or asset prior to the acquisition thereof
by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in
connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or
assets of the Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which
it secures on the date of such acquisition or the
date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements
thereof that do not increase the outstanding
principal amount thereof;
(d) Liens on fixed or capital
assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness having an
aggregate principal amount not exceeding
$50,000,000 at any time outstanding, (ii) such
security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days
after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests
shall not apply to any other property or assets of
the Borrower or any Subsidiary;
(e) Liens (not otherwise permitted
hereunder) which secure Indebtedness of the
Borrower; provided that the aggregate outstanding
principal amount of Indebtedness secured by such
Liens shall not exceed 10% of Consolidated Total
Assets as reflected in the most recent annual
audited or quarterly consolidated financial
statements of the Borrower delivered pursuant to
Section 5.1 at the time of the creation of such Liens;
(f) Liens on assets of Foreign
Subsidiaries (not otherwise permitted hereunder)
which secure Indebtedness of Foreign Subsidiaries
which is not guaranteed by the Borrower; and
(g) Liens which may arise in
connection with the Receivables Facility.
SECTION 6.3.__ Fundamental Changes. The
Borrower will not, and will not permit any
Subsidiary 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 (a) any Subsidiary may
merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (b) any
Subsidiary may merge into any wholly-owned
Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (c) any Subsidiary may
sell, transfer, lease or otherwise dispose of its
assets to the Borrower or to another wholly-owned
Subsidiary and (d) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best
interests of the Borrower and is not materially
disadvantageous to the Lenders.
SECTION 6.4.__ Third Party Guarantees. The
Borrower will not, and will not permit any of its
Subsidiaries to, deliver or provide Guarantees in
respect of obligations of unconsolidated joint
ventures and other Persons not constituting
Subsidiaries in an aggregate amount exceeding
$50,000,000 at any time.
ARTICLE VII
Events of Default
If any of the following events ("Events of
Default") shall occur:
(a) the Borrower shall fail to pay any
principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement 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) the Borrower shall fail to pay any
interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when
and as the same shall become due and payable, and
such failure shall continue unremedied for a period
of five days;
(c) any representation or warranty made
or deemed made by or on behalf of the Borrower or
any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof,
or in any report, certificate, financial statement
or other document furnished pursuant to or in
connection with this Agreement or any amendment or
modification hereof, shall prove to have been
incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in
Section 5.2, 5.3 (with respect to the Borrower's
existence) or 5.8 or in Article VI;
(e) the Borrower shall fail to observe
or perform any covenant, condition or agreement
contained in this Agreement (other than those
specified in clause (a), (b) 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 Borrower;
(f) the Borrower 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;
(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 Borrower or any
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 Borrower or
any 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 Borrower or any 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 Borrower or any 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 Borrower or any 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 $50,000,000 shall be rendered against the
Borrower, 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 Borrower or any
Subsidiary to enforce any such judgment;
(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 a Material Adverse Effect; or
(m) a Change in Control shall
occur; then, and in every such event (other than an
event with respect to the 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
Borrower, 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
Borrower 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 the Borrower; and in case of
any event with respect to the Borrower 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 Borrower 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 the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank 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 Borrower 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 Borrower 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
willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default
unless and until written notice thereof is given to
the Administrative Agent by the 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, (ii) the contents of any certificate,
report or other document delivered hereunder or in
connection herewith, (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 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 the 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
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 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.
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, the Issuing Bank
and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in
consultation with the Borrower, to appoint a
successor. 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 and the Issuing Bank,
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 Borrower to a successor Administrative Agent
shall be the same as those payable to its
predecessor unless otherwise agreed between the
Borrower and such successor. After the
Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.3 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.
None of the Syndication Agent or any Documentation
Agent or the Joint Lead Arrangers and Joint Bank
Managers named on the cover hereof shall have any
rights or obligations in its capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.1.__ Notices. Except in the case of
notices and other communications expressly
permitted to be given by telephone or electronic
communication, 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 the Borrower, to it at
BorgWarner Inc., 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, 00000, Attention of Vice
President and Treasurer (Telecopy No.
312-322-8712) (Xxxxxxxxxxxx@xxxxxx.xxx);
(b) if to the Administrative Agent,
to it at JPMorgan Chase Bank, 0000 Xxxxxx 00xx
Xxxxx, Xxxxxxx, XX 00000, Attention of Xxxxxxx X.
Xxxx (Telecopy No. 713-750-2938)
(xxxxxxx.x.xxxx@xxxxx.xxx), with a copy to (i)
JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx
00000, Attention of Xxxxxxx Xxxxx (Telecopy No.
212-270-5127) Xxxxxxx.Xxxxx@xxxxxxxx.xxx) and (ii)
with respect to matters relating to Loans
denominated in Alternative Currencies, X.X. Xxxxxx
Europe Limited, 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX,
Xxxxxxx, Attention of Xxxxxxx Xxxx (Telecopy No.
x00-000-000-0000) (Xxxxxxx.Xxxx@xxxxxxxx.xxx);
(c) if to the Issuing Bank, to it at JPMorgan
Chase Bank, 10420 Highland Manor Drive BL2, 4th
Floor, Xxxxx, XX 00000, Attention of Xxxxx Xxxxxx
(Telecopy No. 813-432-5161) (xxxxx.Xxxxxx@xxxxx.xxx);
(d) if to the Swingline Lender, to
it at JPMorgan Chase Bank, 0000 Xxxxxx 00xx Xxxxx,
Xxxxxxx, XX 00000, Attention of Xxxxxxx X. Xxxx
(Telecopy No. 713-750-2938)
(xxxxxxx.x.xxxx@xxxxx.xxx), with a copy to JPMorgan
Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxxxxxx Xxxxx (Telecopy No.
212-270-5127) (Xxxxxxx.Xxxxx@ xxxxxxxx.xxx); and
(e) if to any other Lender, to it
at its address (or telecopy number) set forth in
its Administrative Questionnaire.
Any party hereto may change its address or telecopy
number for notices and other communications
hereunder by notice to the other parties hereto
(or, in the case of any Lender, by notice to the
Administrative Agent and the Borrower). 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 9.2.__ Waivers; Amendments. (a) No
failure or delay by the Administrative Agent, the
Issuing Bank 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, the Issuing Bank 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 the
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 or issuance of a Letter of Credit
shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any
provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in
writing entered into by the Borrower and the
Required Lenders or by the Borrower and the
Administrative Agent with the consent of the
Required Lenders; 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 LC
Disbursement 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 LC
Disbursement, 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 2.19(b) or (c) in a
manner that would alter the pro rata sharing of
payments required thereby, without the written
consent of each Lender, or (v) change any of the
provisions of this Section 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; provided further that no such
agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent,
the Issuing Bank or the Swingline Lender hereunder
without the prior written consent of the
Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be.
Notwithstanding the foregoing, any amendment of
this Agreement entered into to effect an increase
in the Commitments pursuant to Section 2.1(e) need
not be approved by the Lenders and shall be
effective when approved by the Administrative Agent
and the Borrower.
SECTION 9.3.__ Expenses; Indemnity; Damage
Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Joint Lead Arrangers and
their Affiliates, including the reasonable fees,
charges and disbursements of counsel for the
Administrative Agent and the Joint Lead Arrangers,
in connection with the syndication of the credit
facilities provided for herein, the preparation and
administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof
(whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Issuing
Bank or any Lender, including the fees, charges and
disbursements of one counsel for the Administrative
Agent, the Issuing Bank and the Lenders (unless
using such counsel would present a conflict of
interest, in which case, the Borrower shall pay the
reasonable fees, charges and disbursements of one
additional counsel), in connection with the
enforcement or protection of their rights in
connection with this Agreement, including their
rights under this Section, or in connection with
the Loans made or Letters of Credit issued
hereunder, including in connection with any
workout, restructuring or negotiations in respect
thereof.
(b) The Borrower shall indemnify
the Administrative Agent, the Joint Lead Arrangers,
the Issuing Bank 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 reasonable fees, charges
and disbursements of any counsel for any Indemnitee
(notwithstanding any limitation in Section
9.3(a)(ii)), 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 agreement or instrument
contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or
the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter
of Credit if the documents presented in connection
with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous
Materials on or from any property owned or operated
by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the
Borrower 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 or its
Related Parties, be available to the extent that
such losses, claims, damages, liabilities or
related expenses are determined by a court of
competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee or its
Related Parties.
(c) To the extent that the Borrower
fails to pay any amount required to be paid by it
to the Administrative Agent, a Joint Lead Arranger,
the Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Dollar
Lender severally agrees to pay to the
Administrative Agent, such Joint Lead Arranger, the
Issuing Bank or the Swingline Lender, as the case
may be, such Lender's Applicable Percentage under
the Dollar Facility (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, such Joint Book Arranger,
the Issuing Bank or the Swingline Lender in its
capacity as such.
(d) To the extent permitted by
applicable law, the Borrower shall not assert, and
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 agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or
the use of the proceeds thereof.
SECTION 9.4.__ Successors and Assigns. (a)
The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto
and their respective successors and assigns
permitted hereby, except that the Borrower may not
assign or otherwise transfer any of its rights or
obligations hereunder without the prior written
consent of each Lender (and any attempted
assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this
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, the Issuing Bank 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 Commitments and the Loans at the
time owing to it); provided that (i) each of the
Borrower (except in the case of an assignment to a
Lender or an Affiliate of a Lender) 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 LC
Exposure or Swingline Exposure, the Issuing Bank
and 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 $5,000,000 and after giving effect
thereto the assigning Lender and its Affiliates
shall hold Commitments of not less than $5,000,000
(except in the case of an assignment to the entire
remaining amount of the assigning Lender's
Commitment), in each case unless each of the
Borrower 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 the assigned Commitment, 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, (v) any assignment by a Lender of its
Commitments under the Dollar Facility, the Euro
Facility, the Sterling Facility or the Yen Facility
shall be accompanied by a ratable assignment (to
the extent practical) of its Commitments under such
other Facilities, unless otherwise agreed by the
Borrower and the Administrative Agent, and (vi) 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 Borrower otherwise required
under this paragraph shall not be required if an
Event of Default has occurred and is continuing.
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
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 2.16, 2.17, 2.18 and 9.3).
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
Borrower, 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 Commitments of, and principal
amount of the Loans and LC Disbursements 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 Borrower, the
Administrative Agent, the Issuing Bank 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 Borrower 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 the Borrower, the Administrative Agent,
the Issuing Bank 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
Commitments 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 Borrower, the
Administrative Agent, the Issuing Bank 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 9.2(b) that affects
such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.16,
2.17 and 2.18 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 2.16 or 2.18 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 Borrower'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 2.18 unless the Borrower is notified of
the participation sold to such Participant and such
Participant agrees, for the benefit of the
Borrower, to comply with Section 2.18(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 9.5.__ Survival. All covenants,
agreements, representations and warranties made by
the Borrower herein and in 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 and
issuance of any Letters of Credit, regardless of
any investigation made by any such other party or
on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any
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 or any
Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The
provisions of Sections 2.16, 2.17, 2.18 and 9.3 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
Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.6.__ 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 4.1, 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, and thereafter shall be binding upon and
inure to the benefit of the parties hereto 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 9.7.__ 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 9.8.__ Right of Setoff. If an Event
of Default shall have occurred and be continuing,
each Lender 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 the Borrower against any of and
all the obligations of the 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. In the event that amounts set off in
one currency are applied to obligations in a
different currency, the rate of exchange shall be
the Exchange Rate as in effect at the time of
application. 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 9.9.__ 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) The 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, the Issuing Bank or any
Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the
Borrower or its properties in the courts of any
jurisdiction.
(c) The 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.
(d) Each party to this Agreement
irrevocably consents to service of process in the
manner provided for notices in Section 9.1.
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 9.10.__ 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 9.11.__ 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 9.12.__ Confidentiality. Each of the
Administrative Agent, the Issuing Bank 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 (i) any assignee
of or Participant in, or any prospective assignee
of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual
or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent
of the Borrower 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 Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower,
provided that, if Information is disclosed pursuant
to clause (b) or (c) above, the Administrative
Agent, the Issuing Bank or such Lender, as the case
may be, shall use its best efforts to promptly
notify the Borrower prior to such disclosure unless
it is legally prohibited from doing so or unless
such disclosure is in connection with customary
reviews by bank examiners. For the purposes of
this Section, "Information" means all information
received from the Borrower relating to the Borrower
or its business, other than any such information
that is available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided
that, in the case of information received from the
Borrower after the date hereof, such information is
clearly 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 9.13.__ Judgment Currency. If, for the
purposes of obtaining judgment or filing a claim in
any court, it is necessary to convert a sum due
hereunder or claim in one currency into another
currency, the rate of exchange used shall be that
at which in accordance with normal banking
procedures the Administrative Agent could purchase
the first currency with such other currency on the
Business Day preceding that on which final judgment
is given. The obligation of the Borrower in
respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder
shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than that in which
such sum is denominated in accordance with the
applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the
extent that on the Business Day following receipt
by the Administrative Agent of any sum adjudged to
be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the
sum originally due to the Administrative Agent from
the Borrower in the Agreement Currency, the
Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such
obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is
greater than the sum originally due to the
Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of
any excess to the Borrower (or to any other Person
who may be entitled thereto under applicable law).
SECTION 9.14.__ Loan Conversion/Participation.
(a) (i) On any Conversion Date, to the extent not
otherwise prohibited by law or otherwise, all
Revolving Loans outstanding in any currency other
than Dollars ("Loans to be Converted") shall be
converted into Dollars (calculated on the basis of
the relevant Exchange Rates as of the Business Day
immediately preceding the Conversion Date)
("Converted Loans"), and (ii) on the Conversion
Date (A) each Dollar Lender severally,
unconditionally and irrevocably agrees that it
shall purchase in Dollars a participating interest
in such Converted Loans in an amount equal to its
Conversion Sharing Percentage (calculated
immediately prior to the termination or expiration
of the Commitments) of the outstanding principal
amount of Converted Loans and (B) to the extent
necessary to cause the Committed Exposure
Percentage of each Lender, after giving effect to
the purchase and sale of participating interests
under the foregoing clause (A), to equal its
Applicable Percentage under the Dollar Facility
(calculated immediately prior to the termination or
expiration of the Commitments), each Dollar Lender
severally, unconditionally and irrevocably agrees
that it shall purchase or sell a participating
interest in its Dollar Revolving Loans then
outstanding. Each Dollar Lender will immediately
transfer to the Administrative Agent, in
immediately available funds, the amounts of its
participation(s), and the proceeds of such
participation(s) shall be distributed by
Administrative Agent to each Lender from which a
participating interest is being purchased in the
amount(s) provided for in the preceding sentence.
All Converted Loans shall be ABR Loans. The
Borrower agrees to indemnify each Lender for any
loss or reasonable cost or expense arising out of
the conversion of Loans from one currency to
another pursuant to this Section.
(b) If, for any reason, the Loans
to be Converted may not be converted into Dollars
in the manner contemplated by paragraph (a) of this
Section 9.14, (i) the Administrative Agent shall
determine the Dollar Amount of the Loans to be
Converted (calculated on the basis of the Exchange
Rate as of the Business Day immediately preceding
the date on which such conversion would otherwise
occur pursuant to paragraph (a) of this Section
9.14), (ii) effective on such Conversion Date, each
Lender severally, unconditionally and irrevocably
agrees that it shall purchase in Dollars a
participating interest in such Loans to be
Converted in an amount equal to its Conversion
Sharing Percentage of such Loans to be Converted
and (iii) each Dollar Lender shall purchase or sell
participating interests as provided in paragraph
(a)(ii) of this Section 9.14. Each Dollar Lender
will immediately transfer to the Administrative
Agent, in immediately available funds, the
amount(s) of its participation(s), and the proceeds
of such participation(s) shall be distributed by
the Administrative Agent to each relevant Lender in
the amount(s) provided for in the preceding sentence.
(c) To the extent any Taxes are
required to be withheld from any amounts payable by
a Lender (the "First Lender") to another Lender
(the "Other Lender") in connection with its
participating interest in any Converted Loan, the
Borrower, with respect to the relevant Loans made
to it, shall be required to pay increased amounts
to the Other Lender receiving such payments from
the First Lender to the same extent they would be
required under Section 2.18 if the Borrower were
making payments with respect to the participating
interest directly to the Other Lender.
SECTION 9.15.__ USA PATRIOT Act. Each Lender
hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act2"), it is required to obtain, verify and
record information that identifies the Borrower,
which information includes the name and address of
the Borrower and other information that will allow
such Lender to identify the Borrower in accordance
with the Act.
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.
BORGWARNER INC.,
By _________________________
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
By _________________________
Name:
Title:
BANK OF AMERICA, N.A., individually and as
Syndication Agent,
By _________________________
Name:
Title:
CALYON NEW YORK BRANCH, individually and as
Documentation Agent
By _________________________
Name:
Title:
CITIBANK, N.A., individually and as Documentation
Agent
By _________________________
Name:
Title:
DEUTSCHE BANK SECURITIES INC., as Documentation Agent
By _________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH, as Lender
By _________________________
Name:
Title
By _________________________
Name:
Title:
