Exhibit 10.45
RELATED FACILITY CREDIT AGREEMENT
by and among
____________________________________,
as Subsidiary Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent for the Lenders
________, ____
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RELATED FACILITY CREDIT AGREEMENT
This Agreement, dated as of ________, ____, is among
______________________________________, a ___________________________, the
Lenders and THE FIRST NATIONAL BANK OF CHICAGO, as Agent and is a "Related
Facility Credit Agreement" as that term is used in the Parent Credit Agreement
(as defined below). The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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1.1. Incorporation of Parent Credit Agreement Definitions. Capitalized
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terms used herein and not otherwise defined are used with the meanings given
such terms in the Parent Credit Agreement.
1.2. Additional Definitions. The following capitalized terms used
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herein shall have the following meanings:
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
"Borrowing Base Certificate" means a certificate in the form of that
attached hereto as Exhibit A.
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"Borrowing Date" means a date on which a Subsidiary Borrower Advance is
made hereunder.
"Collateral Value of the Subsidiary Borrower Borrowing Base" means on any
date __% of the unpaid principal balance (net of any credit balance, trade
discount or unbilled amount or retention) of all Eligible Accounts on such date.
"Default" means an event described in Article VII.
"Eligible Account" means an account receivable of the Subsidiary Borrower
for which each of the following statements is accurate and complete (and the
Subsidiary Borrower by including such account receivable in any computation of
the Borrowing Base shall be deemed to so represent and warrant to the Agent and
the Lenders):
(i) Said account receivable is a binding and valid obligation of the
obligor thereon, in full force and effect and enforceable in
accordance with its terms.
(ii) Said account receivable is genuine, in all respects as appearing on
its face or as represented in the books and records of the
Subsidiary Borrower, and all information set forth therein is true
and correct.
(iii) Said account receivable is free of all default of any party thereto,
counterclaims, and, to the knowledge of the Subsidiary Borrower,
offsets and defenses and from any rescission, cancellation or
avoidance, and all right thereof, whether by operation of law or
otherwise.
(iv) The payment of said account receivable is not more than 90 days past
due the invoice date thereof.
(v) Said account receivable is free of concessions or understandings
with the obligor thereon of any kind not disclosed to and approved
by the Agent in writing.
(vi) Said account receivable is, and at all times will be, free and clear
of all liens, encumbrances, charges, rights and interests of any
kind, except a first priority, perfected security interest in
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favor of the Agent for the benefit of the Lenders.
(vii) Said account receivable is derived from sales made or services
rendered to the obligor in the ordinary course of the Subsidiary
Borrower's business (other than the sale of minerals or the like,
including oil and gas, at the wellhead or minehead).
(viii) The obligor on said account receivable (a) is located within
Australia, Austria, Belgium, Canada, Denmark, Finland, France,
Germany, Ireland, Italy, Japan, Spain, Sweden, Switzerland, The
Netherlands or the United Kingdom; (b) is not the subject of any
bankruptcy or insolvency proceeding, nor has a trustee or receiver
been appointed for all or a substantial part of its property, nor
has said obligor made an assignment for the benefit of creditors,
admitted its inability to pay its debts as they mature or
suspended its business; (c) is not affiliated, directly or
indirectly, with the Parent or the Subsidiary Borrower, as a
Subsidiary or other Affiliate, employee or otherwise; and (d) is
not a state or federal governmental department, commission, board,
bureau or agency.
(ix) Said account receivable did not arise from sales to an obligor as
to whom 25% or more of the total accounts receivable owing by such
obligor to the Subsidiary Borrower are delinquent more than 90
days from the invoice date thereof.
(x) Said account receivable did not arise from sales to an obligor
whose total accounts receivable owing to the Subsidiary Borrower,
to all Other Subsidiary Borrowers and to the Parent constitute
more than 5% of all of the Subsidiary Borrower's, the Other
Subsidiary Borrowers' and the Parent's outstanding accounts
receivable.
(xi) Said account receivable is otherwise satisfactory to the Agent, in
its reasonable credit judgment.
"Eurocurrency Advance" means a Subsidiary Borrower Advance which, except as
otherwise provided in Section 2.11, bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Loan" means a Subsidiary Borrower Loan which, except as
otherwise provided in Section 2.11, bears interest at the applicable
Eurocurrency Rate.
"Floating Rate Advance" means a Subsidiary Borrower Advance which, except
as otherwise provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Subsidiary Borrower Loan which, except as
otherwise provided in Section 2.11, bears interest at the Floating Rate.
"Guaranty" means a guaranty in the form of that attached hereto as Exhibit
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B executed by the Parent in favor of the Agent, for the ratable benefit of the
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Lenders, and covering the Subsidiary Borrower Obligations, as it may be amended,
extended or replaced from time to time.
"Lenders" means the lending institutions from time to time party to the
Parent Credit Agreement, with the current "Lenders" listed on the signature
pages of this Agreement, and their respective successors and assigns.
"Note" means any promissory note issued at the request of a Lender pursuant
to Section 2.14 in the form of Exhibit C.
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"Other Related Facility Credit Agreements" means each of the Related
Facility Credit Agreements other than this Agreement.
"Other Related Facility Loan" means each "Subsidiary Borrower Loan"
advanced under (and as the term "Subsidiary Borrower Loan" is defined in) each
of the Other Related Facility Credit Agreements.
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"Other Subsidiary Borrowers" means the "Subsdiary Borrowers" under each of
the Other Related Facility Credit Agreements.
"Parent" means QAD Inc., a Delaware corporation, its successors and
assigns.
"Parent Credit Agreement" means that certain Credit Agreement dated as of
April 19, 1999 by and among the Parent, the Agent and the Lenders, as the same
may be amended, extended and replaced from time to time.
"Subsidiary Borrower" means ___________________________, a
______________________, and its successors and assigns.
"Subsidiary Borrower Advance" means a borrowing hereunder, (i) made by the
Lenders on the same Borrowing Date, or (ii) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Subsidiary Borrower Loans of the
same Type and, in the case of Eurocurrency Loans, in the same Agreed Currency
and for the same Interest Period.
"Subsidiary Borrower Collateral Documents" means, collectively and
severally, the Subsidiary Borrower Security Agreement and each other document,
instrument and agreement delivered by or on behalf of the Subsidiary Borrower
pursuant to Section 2.22.
"Subsidiary Borrower Loan" means, with respect to a Lender, such Lender's
loan made pursuant to Article II (or any conversion or continuation thereof).
"Subsidiary Borrower Loan Documents" means this Agreement, any Notes issued
pursuant to Section 2.14, the Subsidiary Borrower Collateral Documents and any
additional documents, instruments and agreements executed by the Subsidiary
Borrower in connection herewith or therewith.
"Subsidiary Borrower Obligations" means all unpaid principal of and accrued
and unpaid interest on the Subsidiary Borrower Loans, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Subsidiary Borrower to the Lenders or to any Lender, the Agent, or any
indemnified party arising under the Subsidiary Borrower Loan Documents.
"Subsidiary Borrower Pledged Shares" is defined in Paragraph 3(a) of the
Subsidiary Borrower Security Agreement.
"Subsidiary Borrower Security Agreement" means a security agreement in the
form of that attached hereto as Exhibit D.
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"Type" means, with respect to any Subsidiary Borrower Advance, its nature
as a Floating Rate Advance or a Eurocurrency Advance.
1.3. Inconsistency In the event of any inconsistency between the
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definition given a capitalized term hereunder and the definition, if any, given
such term under the Parent Credit Agreement, the definition contained herein
shall supersede and govern.
ARTICLE II
THE CREDIT
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2.1. Commitment. From and including the date of this Agreement and
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prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to fund its Pro Rata Share of
Subsidiary Borrower Advances to the Subsidiary Borrower in Agreed Currencies,
provided that after giving effect to the making of each such Subsidiary Borrower
Advance:
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(i) such Lender's Outstanding Credit Exposure shall not exceed the
Dollar Amount of its Commitment;
(ii) the aggregate Dollar Amount of Subsidiary Borrower Loans
outstanding hereunder shall not exceed the lesser of:
(1) the Aggregate Commitment minus the sum of: (a) the aggregate
Dollar Amount of Loans and Facility LCs outstanding under the
Parent Credit Agreement, plus (b) the aggregate Dollar Amount
of Other Related Facility Loans outstanding under the Other
Related Facility Credit Agreements, and
(2) The sum of the Collateral Value of the Borrowing Base under
the Parent Credit Agreement plus the Collateral Value of the
Subsidiary Borrower Borrowing Base minus the sum of: (a) the
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aggregate Dollart Amount of Loans and Facility LCs
outstanding under the Parent Credit Agreement, plus (b) the
aggregate Dollar Amount of Parent Collateral Supported
Related Facility Loans outstanding under the Other Related
Facility Credit Agreements, plus the oustanding Dollar Amount
of Indebtedness permitted under Section 6.11(iv) of the
Parent Credit Agreement in excess of $5,000,000; and
(iii) the aggregate Dollar Amount of Subsidiary Borrower Loans
outstanding hereunder in currencies other than the Dollar plus the
Dollar Amount of Loans outstanding under the Parent Credit
Agreement and Other Related Facility Loans outstanding under the
Other Related Facility Credit Agreements in currencies other than
the Dollar shall not exceed $20,000,000.
Subject to the terms of this Agreement, the Subsidiary Borrower may borrow,
repay and reborrow at any time prior to the Facility Termination Date. The
Commitments to extend credit hereunder, under the Parent Credit Agreement and
under the Other Related Facility Credit Agreements shall expire on the Facility
Termination Date.
2.2. Required Payments; Termination. Subject to the mandatory
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prepayment requirements of Section 2.6(ii) below, all outstanding Subsidiary
Borrower Loans and all other unpaid Subsidiary Borrower Obligations shall be
paid in full by the Subsidiary Borrower on the Facility Termination Date.
2.3. Ratable Subsidiary Borrower Loans. Each Subsidiary Borrower
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Advance hereunder shall consist of Subsidiary Borrower Loans made from the
several Lenders ratably according to their Pro Rata Shares.
2.4. Types of Advances. The Subsidiary Borrower Advances may be
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Floating Rate Advances or Eurocurrency Advances, or a combination thereof,
selected by the Subsidiary Borrower in accordance with Sections 2.7 and 2.8.
2.5. Minimum Amount of Each Advance. Each Eurocurrency Advance shall
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be in the minimum amount of $1,000,000 and in multiples of $500 000 if in excess
thereof (or the Approximate Equivalent Amounts if denominated in an Agreed
Currency other than Dollars), and each Floating Rate Advance shall be in the
minimum amount of $1,000,000 and in multiples of $500,000 if in excess thereof,
provided, however, that any Floating Rate Advance may, subject to the
limitations of Section 2.1, be in the amount of the Available Aggregate
Commitment.
2.6. Optional and Mandatory Principal Payments. (i) The Subsidiary
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Borrower may from time to time pay, without penalty or premium, all outstanding
Floating Rate Advances in their entirety or portions thereof in the minimum
amount of $1,000,000 and multiples of $500,000 in excess thereof upon one
Business Day's prior notice to the Agent. The Subsidiary Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.3 but without penalty or premium, all
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outstanding Eurocurrency Advances in their entirety or portions thereof in the
minimum amount of $1,000,000 and multiples of $500,000 in excess thereof (or the
Approximate Equivalent Amount if denominated in an Agreed Currency other than
Dollars), upon three Business Days' prior notice to the Agent.
(ii) If at any time the Dollar Amount of the aggregate principal
amount of all outstanding Subsidiary Borrower Advances (calculated, with respect
to those Advances denominated in Agreed Currencies other than Dollars, as of the
most recent Computation Date with respect to each such Advance) exceeds the
amounts permitted under Section 2.1 above, the Subsidiary Borrower shall
immediately repay Subsidiary Borrower Advances in an aggregate principal amount
sufficient to eliminate any such excess.
2.7. Method of Selecting Types and Interest Periods for New Advances.
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The Subsidiary Borrower shall select the Type of Subsidiary Borrower Advance
and, in the case of each Eurocurrency Advance, the Interest Period and Agreed
Currency applicable thereto from time to time; provided, however, that all
Subsidiary Borrower Advances shall be requested by the Subsidiary Borrower
through the Parent pursuant to a Borrowing Notice and/or Conversion/Continuation
Request presented by the Parent, acting as exclusive representative for the
Subsidiary Borrower, to the Agent as provided in Section 2.8 of the Parent
Credit Agreement.
2.8. Conversion and Continuation of Outstanding Advances. Outstanding
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Subsidiary Borrower Advances may be continued and converted at the election of
the Subsidiary Borrower acting through the Parent on the terms and subject to
the conditions set forth in Section 2.9 of the Parent Credit Agreement.
2.9. Method of Borrowing. On each Borrowing Date, each Lender shall make
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available its Pro Rata Share of Subsidiary Borrower Advances, (i) if such
Subsidiary Borrower Advance is denominated in Dollars, not later than noon,
Chicago time, in Federal or other funds immediately available to the Agent, in
Chicago, Illinois at its address specified in or pursuant to Article XIII, and
(ii) if such Subsidiary Borrower Advance is denominated in an Agreed Currency
other than Dollars, not later than noon, local time, in the city of the Agent's
Eurocurrency Payment Office for such currency, in such funds as may then be
customary for the settlement of international transactions in such currency in
the city of and at the address of the Agent's Eurocurrency Payment Office for
such currency. Unless the Agent determines that any applicable condition
specified in Article IV has not been satisfied, the Agent will make the funds so
received from the Lenders available to the Subsidiary Borrower at the Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.9, to the extent that a Subsidiary Borrower Loan made by a Lender matures on
the Borrowing Date of a requested Subsidiary Borrower Loan, such Lender shall
apply the proceeds of the Subsidiary Borrower Loan it is then making to the
repayment of principal of the maturing Subsidiary Borrower Loan.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
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bear interest on the outstanding principal amount thereof, for each day from and
including the date such Floating Rate Advance is made or is automatically
converted from a Eurocurrency Advance into a Floating Rate Advance pursuant to
Section 2.8, to but excluding the date it is paid or is converted into a
Eurocurrency Advance pursuant to Section 2.8 hereof, at a rate per annum equal
to the Floating Rate for such day. Changes in the rate of interest on any
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurocurrency Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Agent as applicable to
such Eurocurrency Advance based upon the Subsidiary Borrower's selections under
Sections 2.7 and 2.8 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
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contrary contained in Section 2.7 or 2.8, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Subsidiary Borrower, declare that no Subsidiary Borrower Advance may be made as,
converted into or continued as a Eurocurrency Advance. During the continuance
of a Default the Required Lenders may, at their option, by notice to the
Subsidiary Borrower, declare that (i) each Eurocurrency Advance shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum, and (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum, provided that,
during the
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continuance of a Default under Section 7.7 or 7.8, the interest rates set forth
in clauses (i) and (ii) above shall be applicable to all Subsidiary Borrower
Loans without any election or action on the part of the Agent or any Lender.
2.12. Method of Payment. (i) Each Subsidiary Borrower Advance shall be
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repaid and each payment of interest thereon shall be paid in the currency in
which such Subsidiary Borrower Advance was made or, where such currency has
converted to the Euro, in the Euro. All payments of the Subsidiary Borrower
Obligations hereunder shall be made, without setoff, deduction, or counterclaim,
in immediately available funds to the Agent at (except as set forth in the next
sentence) the Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Agent specified in writing by the Agent to the
Subsidiary Borrower, by noon (local time) on the date when due and shall be
applied ratably by the Agent among the Lenders. All payments to be made by the
Subsidiary Borrower hereunder in any currency other than Dollars shall be made
in such currency on the date due in such funds as may then be customary for the
settlement of international transactions in such currency for the account of the
Agent, at its Eurocurrency Payment Office for such currency and shall be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent for
the account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at, (a) with respect to
Floating Rate Loans and Eurocurrency Loans denominated in Dollars, its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender and (b) with respect to
Eurocurrency Loans denominated in an Agreed Currency other than Dollars, in the
funds received from the Subsidiary Borrower at the address of the Agent's
Eurocurrency Payment Office for such currency. The Agent is hereby authorized
to charge any account of the Subsidiary Borrower maintained with First Chicago
or any of its Affiliates for each payment of principal, interest and fees as it
becomes due hereunder.
(ii) Notwithstanding the foregoing provisions of this Section, if, after
the making of any Subsidiary Borrower Advance in any currency other than
Dollars, currency control or exchange regulations are imposed in the country
which issues such currency with the result that the type of currency in which
the Advance was made (the "Original Currency") no longer exists or the
Subsidiary Borrower is not able to make payment to the Agent for the account of
the Lenders in such Original Currency, then all payments to be made by the
Subsidiary Borrower hereunder in such currency shall instead be made when due in
Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of
such payment due, it being the intention of the parties hereto that the
Subsidiary Borrower take all risks of the imposition of any such currency
control or exchange regulations.
2.13. European Economic and Monetary Union. If any Advance made (or to be
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made) would, but for the provisions of this Section 2.13, be capable of being
made in either the Euro or in a National Currency Unit, such Subsidiary Borrower
Advance shall be made in the Euro. Without prejudice to any method of
conversion or rounding prescribed by any legislative measures of the Council of
the European Union, each reference in this Agreement to a fixed amount or to
fixed amounts in a National Currency Unit to be paid to or by the Agent shall,
notwithstanding any other provision of this Agreement, be replaced by a
reference to such comparable and convenient fixed amount or fixed amounts in the
Euro as the Agent may from time to time specify. The Agent may notify the other
parties to this Agreement of any modifications to this Agreement which the Agent
(acting reasonably and after consultation with the other parties to this
Agreement) determines to be necessary as a result of in relation to the
agreement of the Lenders hereunder to include the Euro as an Eligible Currency.
Notwithstanding any other provision of this Agreement, any modifications of
which the Agent so notifies the other parties shall take effect in accordance
with the terms of such notification.
2.14. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
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shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Subsidiary Borrower to such Lender resulting
from each Subsidiary Borrower Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a)
the amount of each Subsidiary Borrower Loan made hereunder, the Type thereof and
the Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Subsidiary
Borrower to each Lender hereunder, and (c) the amount of any sum received by the
Agent hereunder from the
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Subsidiary Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Subsidiary Borrower Obligations therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Subsidiary Borrower to repay the Subsidiary Borrower Obligations in accordance
with their terms.
(iv) Any Lender may request that its Subsidiary Borrower Loans be
evidenced by a promissory note (a "Note"). In such event, the Subsidiary
Borrower shall prepare, execute and deliver to such Lender a Note payable to the
order of such Lender in a form supplied by the Agent. Thereafter, the Subsidiary
Borrower Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be represented by one
or more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such
Subsidiary Borrower Loans once again be evidenced as described in paragraphs (i)
and (ii) above.
2.15. Parent as Authorized Person. The Subsidiary Borrower hereby
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irrevocably authorizes the Lenders and the Agent to extend, convert or continue
Subsidiary Borrower Advances, effect selections of Agreed Currencies and Types
of Subsidiary Borrower Advances and to transfer funds based on notices by the
Parent, it being agreed and understood that the Agent and the Lenders shall have
no obligation to confirm any such notices with the Subsidiary Borrower or any
other Person. The Subsidiary Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of transactions hereunder; provided, however, that the failure of the
Subsidiary Borrower to provide any such confirmation shall not in any manner or
to any extent affect the obligations of the Subsidiary Borrower hereunder and
under the other Subsidiary Borrower Loan Documents.
2.16. Interest Payment Dates; Interest Basis. Interest accrued on each
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Floating Rate Advance shall be payable in arrears on the first day of each
calendar month, on any date on which such Floating Rate is prepaid, whether upon
mandatory prepayment, by acceleration or otherwise, and at maturity. Interest
accrued on each Eurocurrency Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurocurrency Advance is
prepaid, whether upon mandatory prepayment, by acceleration or otherwise, and at
maturity. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest on Eurocurrency
Advances (other than interest on Eurocurrency Advances denominated in British
Pounds Sterling) shall be calculated for actual days elapsed on the basis of a
360-day year. Interest on Floating Rate Loans and Eurocurrency Loans
denominated in British Pounds Sterling shall be calculated for actual days
elapsed on the basis of a 365-day year. Interest shall be payable for the day a
Subsidiary Borrower Advance is made but not for the day of any payment on the
amount paid if payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on a Subsidiary Borrower
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
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Reductions. Promptly after receipt thereof, the Agent will notify each Lender
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of the contents of each Aggregate Commitment reduction notice, Borrowing Notice
and/or Conversion/Continuation Request and repayment notice received by it
hereunder and under the Parent Credit Agreement. The Agent will notify each
Lender of the interest rate applicable to each Eurocurrency Advance promptly
upon determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
2.18. Lending Installations. Each Lender will book its Subsidiary
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Borrower Loans at the appropriate Lending Installation listed on the
administrative information sheets provided to the Agent in connection herewith
or such other Lending Installation designated by such Lender in accordance with
the final sentence of this Section. All terms of this Agreement shall apply to
any such Lending Installation and the Subsidiary Borrower Loans and any Notes
issued hereunder shall be deemed held by each Lender for the benefit of any such
Lending Installation. Each Lender may, by written notice to the Agent and the
Subsidiary
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Borrower in accordance with Article XIII, designate replacement or additional
Lending Installations through which Subsidiary Borrower Loans will be made by it
and for whose account Subsidiary Borrower Loan payments are to be made.
2.19. Non-Receipt of Funds by the Agent. Unless the Subsidiary Borrower or
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a Lender, as the case may be, notifies the Agent prior to the date on which it
is scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Subsidiary Borrower Loan or (ii) in the case of the Subsidiary
Borrower, a payment of principal, interest or fees to the Agent for the account
of the Lenders, that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Subsidiary
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (a) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day for the first three days and, thereafter, the interest rate
applicable to the relevant Subsidiary Borrower Loan or (b) in the case of
payment by the Subsidiary Borrower, the interest rate applicable to the relevant
Subsidiary Borrower Loan.
2.20. Market Disruption. Notwithstanding the satisfaction of all
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conditions referred to in Article II and Article IV with respect to any
Subsidiary Borrower Advance in any Agreed Currency other than Dollars, if there
shall occur on or prior to the date of such Subsidiary Borrower Advance any
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the reasonable
opinion of the Agent or the Required Lenders make it impracticable for the
Eurocurrency Loans comprising such Subsidiary Borrower Advance to be denominated
in the Agreed Currency specified by the Subsidiary Borrower, then the Agent
shall forthwith give notice thereof to the Subsidiary Borrower and the Lenders,
and such Subsidiary Borrower Loans shall not be denominated in such Agreed
Currency but shall, except as otherwise set forth in Section 2.14, be made on
such Borrowing Date in Dollars, in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice and/or Conversion/Continuation Request or
Conversion/Continuation Notice, as the case may be, as Floating Rate Loans,
unless the Subsidiary Borrower notifies the Agent at least one Business Day
before such date that (i) it elects not to borrow on such date or (ii) it elects
to borrow on such date in a different Agreed Currency, as the case may be, in
which the denomination of such Subsidiary Borrower Loans would in the opinion of
the Agent and the Required Lenders be practicable and in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Borrowing Notice and/or Conversion/Continuation Request or
Conversion/Continuation Notice, as the case may be.
2.21. Judgment Currency. If for the purposes of obtaining judgment in
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any court it is necessary to convert a sum due from the Subsidiary Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase the specified currency with such other currency at the Agent's main
Chicago office on the Business Day preceding that on which final, non-appealable
judgment is given. The obligations of the Subsidiary Borrower in respect of any
sum due to any Lender or the Agent hereunder shall, notwithstanding any judgment
in a currency other than the specified currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the Agent
(as the case may be) of any sum adjudged to be so due in such other currency
such Lender or the Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Agent, as the case may be, in the
specified currency, the Subsidiary Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent, as the case may be, against
such loss, and if the amount of the specified currency so purchased exceeds (i)
the sum originally due to any Lender or the Agent, as the case may be, in the
specified currency and (ii) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 11.2, such Lender or the Agent, as the case may be, agrees to remit such
excess to the Subsidiary Borrower.
Page 9
2.22. Collateral Security. As collateral security for the Subsidiary
-------------------
Borrower Obligations, on or before the funding of the first Subsidiary Borrower
Loan and as a condition precedent thereto, the Subsidiary Borrower shall execute
and deliver, and shall cause to be executed and delivered, to the Agent for the
benefit of the Lenders: (i) the Subsidiary Borrower Security Agreement pursuant
to which the Subsidiary Borrower shall grant to the Agent for the benefit of the
Lenders a first priority perfected security interest in and lien upon the
collateral described therein, including, without limitation, all now owned and
hereafter acquired capital stock of all directly owned Subsidiaries of the
Subsidiary Borrower, and (ii) such additional documents, instruments and
agreements, including, without limitation acknowledgments, consents of and
notices to third parties, as the Agent may reasonably require. Following the
funding of first Subsidiary Borrower Loan the Subsidiary Borrower shall execute
and deliver and shall cause to be executed and delivered from time to time such
confirmatory and supplementary security agreements, financing statements,
acknowledgments, consents of and notices to third parties and such other
documents, instruments and agreements as the Agent may reasonably require to
obtain and maintain for the Agent and the Lenders the benefit of the Subsidiary
Borrower Loan Documents.
ARTICLE III
YIELD PROTECTION; TAXES
-----------------------
3.1. Yield Protection. (i) If, on or after the date of this Agreement,
----------------
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(a) subjects any Lender or any applicable Lending Installation to any
Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its
Eurocurrency Loans, or
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurocurrency Advances), including,
without limitation, a change in the amount of capital required or
expected to be maintained by any Lender or any Lending Installation
of any Lender as a result in a change in the Risk-Based Capital
Guidelines, or
(c) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Eurocurrency Loans (including, without
limitation, any conversion of any Subsidiary Borrower Loan
denominated in an Agreed Currency other than Euro into a Subsidiary
Borrower Loan denominated in Euro), or reduces any amount receivable
by any Lender or any applicable Lending Installation in connection
with its Eurocurrency Loans or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to
the amount of Eurocurrency Loans held or interest received by it, by
an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurocurrency Loans
(including, without limitation, any conversion of any Subsidiary Borrower Loan
denominated in an Agreed Currency other than Euro into a Subsidiary Borrower
Loan denominated in Euro) or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Eurocurrency
Loans or its Commitment, then, within 15 days of
Page 10
demand by such Lender the Subsidiary Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
(ii) If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law), imposes or deems applicable any reserve requirement against or
fee with respect to assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation, and the result
of the foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Loans to the Subsidiary
Borrower or its Commitment to the Subsidiary Borrower or to reduce the return
received by such Lender or applicable Lending Installation in connection with
such Eurodollar Loans to or Commitment to the Subsidiary Borrower, then, within
15 days of demand by such Lender, the Subsidiary Borrower shall pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received, provided that the Subsidiary
Borrower shall not be required to compensate any Lender for such non-U.S.
reserve costs or fees to the extent that an amount equal to such reserve costs
or fees is received by such Lender as a result of the calculation of the
interest rate applicable to Eurodollar Advances pursuant to clause (i)(b) of the
definition of "Eurocurrency Rate".
3.2. Availability of Types of Advances. If any Lender reasonably
---------------------------------
determines that maintenance of its Eurocurrency Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (i) deposits of a type, currency and maturity appropriate to match fund
Eurocurrency Advances are not available or (ii) the interest rate applicable to
Eurocurrency Advances does not accurately reflect the cost of making or
maintaining Eurocurrency Advances, then the Agent shall suspend the availability
of Eurocurrency Advances and require any affected Eurocurrency Advances to be
repaid or converted to Floating Rate Advances, subject to the payment of any
funding indemnification amounts required by Section 3.3.
3.3. Funding Indemnification. If any payment of a Eurocurrency Advance
-----------------------
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurocurrency
Advance is not made on the date specified by the Subsidiary Borrower for any
reason other than default by the Lenders, the Subsidiary Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurocurrency Advance.
3.4. Taxes. (i) All payments by the Subsidiary Borrower to or for the
-----
account of any Lender or the Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If the
Subsidiary Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.4) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Subsidiary Borrower shall make such deductions, (c) the Subsidiary
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Subsidiary Borrower shall furnish to
the Agent the original copy of a receipt evidencing payment thereof within 30
days after such payment is made.
(ii) In addition, the Subsidiary Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Subsidiary Borrower hereby agrees to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.4) paid by the Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within 30 days of the date
the Agent or such Lender makes demand therefor pursuant to Section 3.5.
Page 11
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (a)
deliver to each of the Subsidiary Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (b) deliver to each of the Subsidiary Borrower and the Agent a United
States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it
is entitled to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the Subsidiary Borrower
and the Agent (y) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete, and (z)
after the occurrence of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as may be
reasonably requested by the Subsidiary Borrower or the Agent. All forms or
amendments described in the preceding sentence shall certify that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Subsidiary Borrower and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Subsidiary Borrower with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.4 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Subsidiary Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Subsidiary Borrower (with a copy to the Agent), at the time or times
prescribed by applicable law, 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.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Agent of a change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by the Agent as
tax, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the Lenders under
this Section 3.4(vii) shall survive the payment of the Subsidiary Borrower
Obligations and termination of this Agreement.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
----------------------------------------
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of the Subsidiary
Borrower to such Lender under Sections 3.1, 3.3 and 3.4 or to avoid the
unavailability of Eurocurrency Advances under Section 3.2, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Subsidiary Borrower (with a copy to the Agent) as to the amount due, if any,
under Section 3.1, 3.3 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Subsidiary Borrower in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Eurocurrency Loan shall
Page 12
be calculated as though each Lender funded its Eurocurrency Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurocurrency Rate applicable to
such Subsidiary Borrower Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement of any
Lender shall be payable on demand after receipt by the Subsidiary Borrower of
such written statement. The obligations of the Subsidiary Borrower under
Sections 3.1, 3.3 and 3.4 shall survive payment of the Subsidiary Borrower
Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. Initial Subsidiary Borrower Loan. The Lenders shall not be
--------------------------------
required to make the initial Subsidiary Borrower Loan hereunder unless the
Subsidiary Borrower has furnished to the Agent, duly executed by the appropriate
Persons and with sufficient copies for the Lenders:
(i) This Agreement.
(ii) To the extent requested by any Lender, the Note payable to such
Lender.
(iii) The Subsidiary Borrower Security Agreement.
(iv) The Subsidiary Borrower Pledged Shares, if any, outstanding on the
date of funding of the initial Subsidiary Borrower Loan to the
extent certificated or otherwise evidenced by a writing,
accompanied by stock transfer powers therefor executed in blank.
(v) Such documents, instruments and agreements as counsel to the Agent
and the Lenders licensed to practice in the jurisdictions in which
the Subsidiary Borrower operates or which are otherwise relevant to
the priority and perfection of the Lien of the Agent for the
benefit of the Lenders under the Subsidiary Borrower Security
Agreement may require.
(v) The Guaranty.
(vi) Copies of the articles or certificate of incorporation of the
Subsidiary Borrower, together with all amendments, and a
certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(vi) Copies, certified by the Secretary or Assistant Secretary of the
Subsidiary Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Subsidiary Borrower Loan
Documents.
(vii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Subsidiary Borrower, which shall identify by name
and title and bear the signatures of the officer(s) of the
Subsidiary Borrower authorized to sign the Subsidiary Borrower Loan
Documents, upon which certificate the Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the
Parent.
(viii) Copies, certified by the Secretary or Assistant Secretary of the
Parent of its Board of Directors' resolutions and of resolutions or
actions of any other body authorizing the execution of the
Guaranty.
(ix) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Parent, which shall identify by name and title and
bear the signatures of the officer(s) of the Parent authorized to
sign the Guaranty.
Page 13
(viii) A written opinion of the Subsidiary Borrower's counsel, addressed
to the Agent and the Lenders in substantially the form of
Exhibit E.
---------
(ix) Written money transfer instructions, in the form of Exhibit F,
---------
addressed to the Agent and signed by an authorized officer of the
Parent, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(x) A Borrowing Base Certificate dated as of the date of the initial
Subsidiary Borrower Loan, duly executed by the chief financial
officer of the Subsidiary Borrower, setting forth in form and
detail satisfactory to the Agent that the Collateral Value of the
Subsidiary Borrower Borrowing Base, if any, at and as of such date.
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Subsidiary Borrower Loan. The Lenders shall not be required
-----------------------------
to make any Subsidiary Borrower Loan unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are true
and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.
(iii) After giving effect thereto and to the funding of all Loans under
the Parent Credit Facility and Other Related Facility Loans to be
advanced under the Other Related Facility Credit Agreements and to
the issuance of all Facility LCs on such Borrowing Date, the
Subsidiary Borrower shall be in compliance with the limitations of
Section 2.1.
(iv) All legal matters incident to the making of such Subsidiary
Borrower Loan shall be satisfactory to the Lenders and their
counsel.
Each Borrowing Notice and/or Conversion/Continuation Request submitted on behalf
of the Subsidiary Borrower by the Parent shall constitute a representation and
warranty by the Subsidiary Borrower that the conditions contained in Sections
4.2(i) through (iii) have been satisfied. Any Lender may require a duly
completed Compliance Certificate as a condition to making a Subsidiary Borrower
Loan.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Subsidiary Borrower represents and warrants to the Lenders that:
5.1. Review and Approval of Parent Credit Agreement. The Subsidiary
----------------------------------------------
Borrower has reviewed the Parent Credit Agreement and all Exhibits and Schedules
referred to therein and has approved all terms and conditions relating to or
affecting the Subsidiary Borrower contained therein. The Subsidiary Borrower
acknowledges and agrees that the credit facility evidenced hereby shall
automatically terminate and be of no further effect in the event the Parent
Credit Agreement shall terminate for any reason, including, without limitation,
by reason of the Parent's election to reduce the Aggregate Commitment to zero as
permitted thereunder.
5.2. Authorization and Validity. The Subsidiary Borrower has the power
--------------------------
and authority and legal right to execute and deliver the Subsidiary Borrower
Loan Documents and to perform its obligations thereunder. The execution and
delivery by the Subsidiary Borrower of the Subsidiary Borrower Loan Documents
and the performance of its obligations thereunder have been duly authorized by
proper corporate
Page 14
proceedings, and the Subsidiary Borrower Loan Documents constitute legal, valid
and binding obligations of the Subsidiary Borrower enforceable against the
Subsidiary Borrower in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and general principles of equity.
5.3. No Conflict; Government Consent. Neither the execution and
-------------------------------
delivery by the Subsidiary Borrower of the Subsidiary Borrower Loan Documents,
nor the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Subsidiary Borrower
or (ii) the Subsidiary Borrower's articles or certificate of incorporation or
other organizational documents, or (iii) the provisions of any indenture,
instrument or agreement to which the Subsidiary Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Subsidiary Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been obtained by the
Subsidiary Borrower or any of its Subsidiaries, is required to be obtained by
the Subsidiary Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Subsidiary Borrower Loan Documents, the borrowings
under this Agreement, the payment and performance by the Subsidiary Borrower of
the Subsidiary Borrower Obligations or the legality, validity, binding effect or
enforceability of any of the Subsidiary Borrower Loan Documents.
5.4. Subsidiaries. The Subsidiary Borrower has no Subsidiaries.
------------
5.5. Reaffirmation. All representations and warranties set forth in
-------------
Article VI of the Parent Credit Agreement as they relate to the Subsidiary
Borrower are accurate and complete in all respects and, to the knowledge of the
Subsidiary Borrower, all other representations and warranties set forth therein
as they relate to the Parent and other Subsidiaries of the Parent are accurate
and complete in all respects.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement:
6.1. Financial Reporting. The Subsidiary Borrower will furnish to the
-------------------
Lenders:
(i) Within 10 Business Days after the end of each calendar
month, a Borrowing Base Certificate as of the last day of
such calendar month, signed by the Subsidiary Borrower's
chief financial officer.
(ii) Promptly, such other information (including financial and
non-financial information) as the Agent or any Lender may
from time to time reasonably request.
6.2. Use of Proceeds. The Subsidiary Borrower will use the proceeds of
---------------
the Advances for general corporate purposes. The Subsidiary Borrower will not
use any of the proceeds of the Advances to purchase or carry any "margin stock"
(as defined in Regulation U).
6.3. Notice of Default. The Subsidiary Borrower will give prompt
-----------------
notice in writing to the Lenders of the occurrence of any Default or Unmatured
Default and of any other development, financial or otherwise (including, without
limitation, developments with respect to Year 2000 Issues), which could
reasonably be expected to have a Material Adverse Effect.
6.4. Compliance with Covenants of Parent Credit Agreement. The
----------------------------------------------------
Subsidiary Borrower will take all such actions as are necessary to assure that
as a Subsidiary of the Parent it is in compliance with all
Page 15
requirements applicable to Subsidiaries of the Parent pursuant to the Parent
Credit Agreement and will not take any action which would cause the Parent to be
in violation of any term or provision set forth therein.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Subsidiary Borrower under or in connection with this Agreement, any
Subsidiary Borrower Loan, or any certificate or information delivered in
connection with this Agreement or any other Subsidiary Borrower Loan Document
shall be inaccurate or incomplete in any material respect on the date as of
which made.
7.2. Nonpayment of principal of any Subsidiary Borrower Loan when due
or nonpayment of interest upon any Subsidiary Borrower Loan or other Obligations
under any of the Subsidiary Borrower Loan Documents within five days after the
same becomes due.
7.3. The failure of the Subsidiary Borrower to observe or perform any
of its obligations under the Subsidiary Borrower Security Agreement.
7.4. The breach by the Subsidiary Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement or any other Subsidiary Borrower Loan
Document which is not remedied within five Business Days after written notice
from the Agent or any Lender.
7.5. The Subsidiary Borrower Security Agreement shall for any reason
fail to create or there shall otherwise cease to be in existence a valid and
perfected first priority security interest in the collateral purported to be
covered thereby (other than as a direct result of the release thereof by the
Agent or the failure of the Agent to file a continuation statement) or the
Subsidiary Borrower Security Agreement shall fail to remain in full force or
effect or any action shall be taken to rescind or revoke the Subsidiary Borrower
Security Agreement or to assert the invalidity or unenforceability of the
Subsidiary Borrower Security Agreement or any term or provisions thereof.
7.6. The occurrence of a "Default" under (and as that term is defined
in) the Parent Credit Agreement.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. Acceleration. If any Default described in Section 7.7 or 7.8 of
------------
the Parent Credit Agreement occurs with respect to the Subsidiary Borrower, the
obligations of the Lenders to make Subsidiary Borrower Loans hereunder shall
automatically terminate and the Subsidiary Borrower Obligations shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender If any other Default occurs, the Required Lenders (or
the Agent with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Subsidiary Borrower Loans hereunder or
declare the Subsidiary Borrower Obligations to be due and payable, or both,
whereupon the Subsidiary Borrower Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Subsidiary Borrower hereby expressly waives.
8.2. Amendments. Subject to the provisions of this Article VIII, the
----------
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Subsidiary Borrower may enter into
Page 16
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Subsidiary Borrower Loan Documents or changing in any manner
the rights of the Lenders or the Subsidiary Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the final maturity of any Subsidiary Borrower Loan or
postpone any regularly scheduled payment of principal of any
Subsidiary Borrower Loan or forgive all or any portion of the
principal amount thereof or reduce the rate or extend the time of
payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, any mandatory prepayment required
under Section 2.2, or increase the amount of the Aggregate
Commitment or the Commitment of any Lender or permit the
Subsidiary Borrower to assign its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release all or substantially all of the collateral purported to be
covered by the Subsidiary Borrower Security Agreement.
(vi) Release the Parent from any obligations under the Guaranty.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent.
8.3. Preservation of Rights. No delay or omission of the Lenders or
----------------------
the Agent to exercise any right under the Subsidiary Borrower Loan Documents or
the Guaranty shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Subsidiary Borrower Loan
notwithstanding the existence of a Default or the inability of the Subsidiary
Borrower to satisfy the conditions precedent to such Subsidiary Borrower Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Subsidiary Borrower Loan Documents or the
Guaranty whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Subsidiary Borrower Loan
Documents or the Guaranty or by law afforded shall be cumulative and all shall
be available to the Agent and the Lenders until the Subsidiary Borrower
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations. All representations and warranties
---------------------------
of the Subsidiary Borrower contained in this Agreement shall survive the making
of the Subsidiary Borrower Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
-----------------------
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Subsidiary Borrower in violation of any limitation or prohibition provided
by any applicable statute or regulation.
9.3. Headings. Section headings in the Subsidiary Borrower Loan
--------
Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Subsidiary Borrower Loan
Documents.
Page 17
9.4. Entire Agreement. The Parent Credit Agreement, Subsidiary
----------------
Borrower Loan Documents and the Other Related Facility Subsidiary Borrower Loan
Documents and each Guaranty delivered in connection with the Related Facility
Credit Agreements embody the entire agreement and understanding among the
Subsidiary Borrower, the Agent and the Lenders and supersede all prior
agreements and understandings among the Subsidiary Borrower, the Agent and the
Lenders relating to the subject matter thereof.
9.5. Several Subsidiary Borrower Obligations; Benefits of this
---------------------------------------------------------
Agreement. The respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any other (except to
the extent to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger shall enjoy
the benefits of the provisions of Section 9.6 hereof and Sections 9.10 and 10.11
of the Parent Credit Agreement to the extent specifically set forth therein and
shall have the right to enforce such provisions on its own behalf and in its own
name to the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Subsidiary Borrower shall
-------------------------
reimburse the Agent and the Arranger for any costs, internal charges and out-of-
pocket expenses (including attorneys' fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Subsidiary Borrower Loan Documents and the Guaranty,
including, without limitation, costs, charges and expenses incident to audits by
the Agent of the books and records of the Subsidiary Borrower, including
preparation and distribution of reports relating to the same to the Lenders,
provided, that prior to the occurrence of a Default or an Unmatured Default, the
Subsidiary Borrower shall not be obligated to pay the costs, charges and
expenses for more than a single audit during each consecutive 12-month period.
The Subsidiary Borrower also agrees to reimburse the Agent, the Arranger and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent, the Arranger and
the Lenders, which attorneys may be employees of the Agent, the Arranger or the
Lenders) paid or incurred by the Agent, the Arranger or any Lender in connection
with the collection and enforcement of the Subsidiary Borrower Loan Documents
and the Guaranty following the occurrence of a Default.
(ii) The Subsidiary Borrower hereby further agrees to indemnify the Agent,
the Arranger and each Lender, its directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Subsidiary Borrower Loan Documents, the Guaranty, the
transactions contemplated hereby and thereby or the direct or indirect
application or proposed application of the proceeds of any Subsidiary Borrower
Loan hereunder except to the extent that they are determined in a final non-
appealable judgment by a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of the party seeking indemnification.
The obligations of the Subsidiary Borrower under this Section 9.6 shall survive
the termination of this Agreement.
9.7. Severability of Provisions. Any provision in any Subsidiary
--------------------------
Borrower Loan Document that is held to be inoperative, unenforceable, or invalid
in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Subsidiary
Borrower Loan Documents are declared to be severable.
9.8. Nonliability of Lenders. The relationship between the Subsidiary
-----------------------
Borrower on the one hand and the Lenders and the Agent on the other hand shall
be solely that of Subsidiary Borrower and lender. Neither the Agent, the
Arranger nor any Lender shall have any fiduciary responsibilities to the
Subsidiary Borrower. Neither the Agent, the Arranger nor any Lender undertakes
any responsibility to the Subsidiary Borrower to review or inform the Subsidiary
Borrower of any matter in connection with any phase of the Subsidiary Borrower's
business or operations. The Subsidiary Borrower agrees that neither the Agent,
the
Page 18
Arranger nor any Lender shall have liability to the Subsidiary Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Subsidiary
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Subsidiary
Borrower Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger nor any Lender shall have any liability with respect to, and
the Subsidiary Borrower hereby waives, releases and agrees not to xxx for, any
special, indirect or consequential damages suffered by the Subsidiary Borrower
in connection with, arising out of, or in any way related to the Subsidiary
Borrower Loan Documents, the Guaranty or the transactions contemplated thereby.
9.9. Confidentiality. Each Lender agrees to hold any confidential
---------------
information which it may receive from the Subsidiary Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which such Lender is a party, (vi) to such Lender's
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties, and
(vii) permitted by Section 12.4.
ARTICLE X
THE AGENT
---------
The First National Bank of Chicago has been appointed to act as Agent for
the Lenders hereunder pursuant to Article X of the Parent Credit Agreement, the
terms and provisions of which are hereby incorporated herein by this reference.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
------------------------
11.1. Setoff. In addition to, and without limitation of, any rights of
------
the Lenders under applicable law, if the Subsidiary Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Subsidiary
Borrower may be offset and applied toward the payment of the Subsidiary Borrower
Obligations owing to such Lender, whether or not the Subsidiary Borrower
Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
----------------
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.3 or 3.4) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Subsidiary Borrower Obligations
or such amounts which may be subject to setoff, such Lender agrees, promptly
upon demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Shares of the Aggregate Outstanding Credit Exposure. In case any such payment
is disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
ARTICLE XII
Page 19
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns. The terms and provisions of the
----------------------
Subsidiary Borrower Loan Documents shall be binding upon and inure to the
benefit of the Subsidiary Borrower and the Lenders and their respective
successors and assigns, except that (i) the Subsidiary Borrower shall not have
the right to assign its rights or obligations under the Subsidiary Borrower Loan
Documents.
12.2. Participations. Any Lender may at any time sell participating
--------------
interests in any Outstanding Credit Exposure of such Lender as provided in
Section 12.2 of the Parent Credit Agreement.
12.3. Assignments. Any Lender may assign all or any part of its rights
-----------
and obligations under the Subsidiary Borrower Loan Documents in accordance with
the provisions of Section 12.3 of the Parent Credit Agreement.
12.4. Dissemination of Information. The Subsidiary Borrower authorizes
----------------------------
each Lender to disclose to any Person acquiring an interest in the Subsidiary
Borrower Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Subsidiary Borrower; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. Tax Treatment. If any interest in any Subsidiary Borrower Loan
-------------
Document is transferred to any Transferee which is organized under the laws of
any jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section
3.4(iv).
ARTICLE XIII
NOTICES
-------
All notices, requests and other communications to any party hereunder shall
be in writing (including electronic transmission, facsimile transmission or
similar writing) and shall be given to such party: (i) in the case of the
Subsidiary Borrower, to the Parent at its address specified in the Parent Credit
Agreement, and (ii) in the case of the Agent and each Lender, at its address or
facsimile number specified in the Parent Credit Agreement. Each such notice,
request or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Agent under Article II shall not
be effective until received.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Subsidiary Borrower, the Agent and
the Lenders and each party has notified the Agent by facsimile transmission or
telephone that it has taken such action.
Page 20
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
15.1. CHOICE OF LAW. THE SUBSIDIARY BORROWER LOAN DOCUMENTS (OTHER THAN
-------------
THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS, OF THE STATE OF CALIFORNIA, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE SUBSIDIARY BORROWER HEREBY
-----------------------
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR CALIFORNIA STATE COURT SITTING IN LOS ANGELES, CALIFORNIA IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY SUBSIDIARY BORROWER LOAN
DOCUMENTS AND THE SUBSIDIARY BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE SUBSIDIARY BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE SUBSIDIARY
BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY SUBSIDIARY BORROWER LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN LOS ANGELES, CALIFORNIA.
15.3. WAIVER OF JURY TRIAL. THE SUBSIDIARY BORROWER, THE AGENT AND EACH
--------------------
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY SUBSIDIARY BORROWER
LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Subsidiary Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
_________________________________,
a ________________________________
Commitments
-----------
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:_______________________________
Title:____________________________
Page 21
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS....................................................................... 2
1.1. Incorporation of Parent Credit Agreement Definitions.............................. 2
1.2. Additional Definitions............................................................ 2
1.3. Inconsistency..................................................................... 4
ARTICLE II. THE CREDIT........................................................................ 4
2.1. Commitment........................................................................ 4
2.2. Required Payments; Termination.................................................... 5
2.3. Ratable Subsidiary Borrower Loans................................................. 5
2.4. Types of Advances................................................................. 5
2.5. Minimum Amount of Each Advance.................................................... 5
2.6. Optional and Mandatory Principal Payments......................................... 5
2.7. Method of Selecting Types and Interest Periods for New Advances................... 6
2.8. Conversion and Continuation of Outstanding Advances............................... 6
2.10. Method of Borrowing............................................................... 6
2.10. Changes in Interest Rate, etc..................................................... 6
2.11. Rates Applicable After Default.................................................... 6
2.12. Method of Payment................................................................. 7
2.13. European Economic and Monetary Union.............................................. 7
2.14. Noteless Agreement; Evidence of Indebtedness...................................... 7
2.16. Parent as Authorized Person....................................................... 8
2.16. Interest Payment Dates; Interest Basis............................................ 8
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions... 8
2.18. Lending Installations............................................................. 8
2.19. Non-Receipt of Funds by the Agent................................................. 9
2.20. Market Disruption................................................................. 9
2.21. Judgment Currency................................................................. 9
2.22. Collateral Security............................................................... 10
ARTICLE III. YIELD PROTECTION; TAXES........................................................... 10
3.1. Yield Protection.................................................................. 10
3.3. Availability of Types of Advances................................................. 11
3.3. Funding Indemnification........................................................... 11
3.4. Taxes 11
3.5. Lender Statements; Survival of Indemnity.......................................... 12
ARTICLE IV. CONDITIONS PRECEDENT.............................................................. 13
4.1. Initial Subsidiary Borrower Loan.................................................. 13
4.2. Each Subsidiary Borrower Loan..................................................... 14
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................................... 14
5.1. Review and Approval of Parent Credit Agreement.................................... 14
5.2. Authorization and Validity........................................................ 14
5.3. No Conflict; Government Consent................................................... 15
5.8. Subsidiaries...................................................................... 15
5.19. Reaffirmation..................................................................... 15
ARTICLE VI. COVENANTS......................................................................... 15
i
6.1. Financial Reporting............................................................... 15
6.2. Use of Proceeds................................................................... 15
6.3. Notice of Default................................................................. 15
6.4. Compliance with Covenants of Parent Credit Agreement.............................. 15
ARTICLE VII. DEFAULTS.......................................................................... 16
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................................... 16
8.1. Acceleration...................................................................... 16
8.2. Amendments........................................................................ 16
8.3. Preservation of Rights............................................................ 17
ARTICLE IX. GENERAL PROVISIONS 17
9.1. Survival of Representations....................................................... 17
9.2. Governmental Regulation........................................................... 17
9.3. Headings.......................................................................... 17
9.4. Entire Agreement.................................................................. 18
9.5. Several Subsidiary Borrower Obligations; Benefits of this Agreement............... 18
9.6. Expenses; Indemnification......................................................... 18
9.7. Severability of Provisions........................................................ 18
9.8. Nonliability of Lenders........................................................... 18
9.9. Confidentiality................................................................... 19
ARTICLE X. THE AGENT......................................................................... 19
ARTICLE XI. SETOFF; RATABLE PAYMENTS.......................................................... 19
11.1. Setoff
11.2. Ratable Payments.................................................................. 19
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................. 20
12.1. Successors and Assigns............................................................ 20
12.2. Participations.................................................................... 20
12.3. Assignments....................................................................... 20
12.4. Dissemination of Information...................................................... 20
12.5. Tax Treatment..................................................................... 20
ARTICLE XIII. NOTICES........................................................................... 20
ARTICLE XIV. COUNTERPARTS...................................................................... 20
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...................... 21
15.1. CHOICE OF LAW..................................................................... 21
15.2. CONSENT TO JURISDICTION........................................................... 21
15.3. WAIVER OF JURY TRIAL.............................................................. 21
ii
