EXHIBIT 10.1 Execution Copy
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT, dated as of April 27, 2005
(this "Amendment"), is among DIEBOLD, INCORPORATED, an Ohio corporation (the
"Company"), the SUBSIDIARY BORROWERS (as defined in the Loan Agreement referred
to below) (together with the Company, the "Borrowers"), the lenders set forth on
the signature pages hereof (the "Lenders"), and JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago)), a national banking
association, as agent for the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrowers, the Lenders party thereto and the Agent are
parties to an Amended and Restated Loan Agreement dated as of April 30, 2003, as
amended by a First Amendment to Loan Agreement dated as of April 28, 2004 (the
"Loan Agreement").
B. The Borrowers desire to amend the Loan Agreement as set forth
herein, and the Agent and the Lenders are willing to do so in accordance with
the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth
in Article III hereof, the Loan Agreement shall be amended as follows:
1.1 The text (exclusive of exhibits and schedules) of the Loan Agreement
is amended to read in its entirety as shown on Annex I attached hereto.
1.2 Schedules 1.1(a) and 5.8 and Exhibit A to the Loan Agreement are
replaced with Schedules 1.1(a) and 5.8 and Exhibit A hereto attached hereto,
respectively.
ARTICLE II. REPRESENTATIONS. Each of the Borrowers represents and warrants
to the Agent and the Lenders that:
2.1 The execution, delivery and performance of this Amendment are within
its powers, have been duly authorized by existing board resolutions or other
necessary corporate action and are not in contravention of any statute, law or
regulation or of any terms of its Articles of Incorporation, Certificate of
Incorporation or By-laws or other charter documents, or of any material
agreement or undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
2.3 After giving effect to the amendments contained herein, the
representations and warranties contained in Article V of the Loan Agreement are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof, 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 be true and correct on and as of such earlier date.
2.4 After giving effect to the amendments contained herein, no Default or
Unmatured Default exists or has occurred and is continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date hereof when eachof the following conditions is
satisfied:
3.1 The Borrowers, the Lenders, the Swing Lender and the Agent shall have
signed this Amendment.
3.2 The Guarantors shall have signed the consent and agreement to this
Amendment.
3.3 The Borrowers and the Guarantors shall have delivered such evidence of
the due authorization of the execution, delivery and performance of this
Amendment as requested by the Agent.
ARTICLE IV. MISCELLANEOUS.
4.1 The Borrowers agree to pay an amendment fee to each Lender in an
amount equal to 7.5 basis points on the Dollar Equivalent Amount of the
aggregate amount of such Lender's Commitments, payable on or within two Business
Days of the effective date of this Amendment.
4.2 References in the Loan Agreement or in any other Loan Document to the
Loan Agreement shall be deemed to be references to the Loan Agreement as amended
hereby and as further amended from time to time.
4.3 Except as expressly amended hereby, each of the Borrowers agrees that
the Loan Agreement and the other Loan Documents are ratified and confirmed, as
amended hereby, and shall remain in full force and effect in accordance with
their terms and that they are not aware of any set off, counterclaim, defense or
other claim or dispute with respect to any of the foregoing. Terms used but not
defined herein shall have the respective meanings ascribed thereto in the Loan
Agreement. This Amendment may be signed upon any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument, and telecopied signatures shall be effective as originals.
-2-
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have executed
this Amendment as of the date first above written.
DIEBOLD, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
DIEBOLD INTERNATIONAL LIMITED,
as a Subsidiary Borrower
DIEBOLD SELF-SERVICE SOLUTIONS
LIMITED LIABILITY COMPANY,
as a Subsidiary Borrower
DIEBOLD AUSTRALIA PTY LTD, as a
Subsidiary Borrower
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Authorized Signer
JPMORGAN CHASE BANK, N.A., as Agent
and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as a
Co-Syndication Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Print Name: Xxxxxxxx X. Xxxx
Title: Vice President
-3-
NATIONAL CITY BANK, as a Co-Syndication
Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as a
Documentation Agent and as a Lender
By: /s/ Xxxxx Xxxxxxxx Xxxxxxxxxxx
-----------------------------------
Print Name: Xxxxx Xxxxxxxx Xxxxxxxxxxx
Title: Director
PNC BANK, NATIONAL ASSOCIATION, as a
Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Managing Director
THE BANK OF NEW YORK, as a Managing
Agent and as a Lender
By: /s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------
Print Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
U.S. BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
-4-
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Kazuya Matsushita
-----------------------------------
Print Name: Kazuya Matsushita
Title: General Manager
HSBC BANK USA, N.A.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Print Name: Xxxxx Xxxxx
Title: First Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Print Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
By: /s/ Xxxxxx Noique
-----------------------------------
Print Name: Xxxxxx Noique
Title: Group Vice President
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: /s/ Xxxxxx Crewley
-----------------------------------
Print Name: Xxxxxx Crewley
Title: Department Manager
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Print Name: Xxxxxx Xxxxxxx
Title: Senior Manager
-5-
CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment and
the consummation of the transactions contemplated thereby;
(b) agrees that the Guaranty to which it is a party and each other Loan
Document to which it is a party are hereby ratified and confirmed and shall
remain in full force and effect, acknowledges and agrees that it has no setoff,
counterclaim, defense or other claim or dispute with respect the Guaranty to
which it is a party and each other Loan Document to which it is a party; and
(c) represents and warrants to the Agent and the Lenders that the
execution, delivery and performance of this Consent and Agreement are within its
powers, have been duly authorized and are not in contravention of any statute,
law or regulation or of any terms of its organizational documents or of any
material agreement or undertaking to which it is a party or by which it is
bound, and this Consent and Agreement is the legal, valid and binding
obligations of it, enforceable against it in accordance with the terms hereof
and thereof. Terms used but not defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement.
DIEBOLD INVESTMENT COMPANY
DIEBOLD FINANCE COMPANY, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Print Name: Xxxxx X. Xxxx
Title: Vice President, Secretary and Treasurer
DIEBOLD HOLDING COMPANY, INC.
DIEBOLD ELECTION SYSTEMS, INC.
DIEBOLD GLOBAL FINANCE CORPORATION
DIEBOLD SST HOLDING COMPANY, INC.
DIEBOLD SELF-SERVICE SYSTEMS
DIEBOLD CHINA SECURITY HOLDING COMPANY, INC.
DIEBOLD LATIN AMERICA HOLDING COMPANY, INC.
DIEBOLD SOUTHEAST MANUFACTURING, INC.
DIEBOLD MIDWEST MANUFACTURING, INC.
DIEBOLD AUSTRALIA HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Print Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
-6-
EXHIBIT A
PRICING SCHEDULE
The Applicable Margin for Floating Rate Loans, Eurodollar Loans and
Multicurrency Loans, the Facility Fee payable pursuant to Section 2.5 and the
Letter of Credit Fee payable pursuant to Section 2.15.6 shall, subject to the
last sentence of this Exhibit A, be determined in accordance with the Pricing
Matrix set forth below based on the Company's Total Net Debt to Capitalization
Ratio in effect from time to time.
Pricing Matrix (in basis points)
Applicable Eurodollar/
Floating Rate Eurocurrency Margin for
Margin for Revolving Credit Loans,
Total Net Debt to Revolving Multicurrency Loans and
Level Capitalization Ratio Facility Fee Credit Loans Letter of Credit Fees
------ -------------------- ------------ ---------------- -----------------------
I < 15% 9.0 b.p. 0.0 b.p. 36.0 b.p.
II > or = 15% but < 25% 9.0 b.p. 0.0 b.p. 41.0 b.p
III > or = 25% but < 35% 12.5 b.p. 0.0 b.p. 50.0 b.p
IV > or = 35% but < 45% 17.5 b.p. 0.0 b.p. 57.5 b.p.
V > or = 45% 25.0 b.p. 0.0 b.p. 75.0 b.p.
Such Applicable Margin shall be determined in accordance with the
foregoing Pricing Matrix based on the Company's level as reflected in the most
recent financial statements of the Company delivered pursuant to Section 6.1(i)
and (ii) of the Loan Agreement. Adjustments, if any, to the Applicable Margin
shall be effective 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and 95 days after the end of each
fiscal year of the Company, commencing with the first such day after the
Effective Date. If the Borrower fails to deliver the financial statements
required pursuant to Section 6.1(i) or (ii) at the time required or any other
Default has occurred and is continuing, then the Applicable Margin shall be the
highest Applicable Margin set forth in the foregoing Pricing Matrix until such
Default is cured or waived under the Agreement. Notwithstanding the foregoing,
the Applicable Margin for the period from the Second Amendment Effective Date
until it shall be adjusted for the first time thereafter shall be the Level I
Applicable Margin described above.
-7-
SCHEDULE 1.1(a)
Commitments
U.S. REVOLVING EURO REVOLVING
LENDER TITLE CREDIT COMMITMENT CREDIT COMMITMENT
---------------------------- -------------------- ----------------- -----------------
JPMorgan Chase Bank, N.A. Administrative Agent $25,000,000 E20,000,000
(12.5%) (13.0000000%)
KeyBank National Association Co-Syndication Agent $20,000,000 E15,000,000
(10.0%) (10.0%)
National City Bank Co-Syndication Agent $20,000,000 E15,000,000
(10.0%) (10.0%)
Bank of America, N.A. Documentation Agent $20,000,000 E15,000,000
(10.0%) (10.0%)
PNC Bank, National Documentation Agent $20,000,000 E15,000,000
Association (10.0%) (10.0%)
The Bank of New York Managing Agent $20,000,000 E15,000,000
(10.0%) (10.0%)
U.S. Bank, N.A. Participant $20,000,000 E10,000,00
(10.0%) (6.0000000%)
The Bank of Participant $20,000,000 E10,000,00
Tokyo-Mitsubishi, Ltd. (10.0%) (6.0000000%)
HSBC Bank USA, N.A. Participant $15,000,000 E10,000,000
(7.5%) (6.6666667%)
ABN AMRO Bank N.V. Participant $15,000,000 E10,000,00
(7.5%) (6.6666667%)
The Governor and Company of Participant $5,000,000 E15,000,000
the Bank of Ireland (2.5%) (10.0%)
TOTAL $200,000,000 E150,000,000
-8-
SCHEDULE 5.8
List of Subsidiaries
See attached list
-9-
Diebold, Incorporated
& Subsidiaries
DOMESTIC OPERATIONS
Revised December 31, 2004
Page 1
--------------------------
Diebold, Incorporated
(Ohio)
--------------------------
|
---------------------------------------------------------------------------- A
| |
| |
-------------------------- | -------------------------- | --------------------------
Diebold of Nevada, Inc. 100% | 100% DBD Investment | 100% Diebold China Security
--------------- Management Company | ------ Holding Company, Inc.
(Nevada) | (Delaware) | (Delaware)
-------------------------- | -------------------------- | --------------------------
| | |
| | --------------B
-------------------------- | -------------------------- | --------------------------
VDM Holding Company, Inc. 100% | 100% Guardian Burglar Proof | 100% Diebold Mexico Holding
--------------- Equipment Company | ------ Company, Inc.
(Delaware) | (Ohio) | (Delaware)
-------------------------- | -------------------------- | --------------------------
| | |
| | --------------C
-------------------------- | -------------------------- | --------------------------
Record Files, 100% 100% Central Security | 100% Diebold Latin America
Incorporated --------------- Systems, Inc. | ------ Holding Company, Inc.
(Ohio) (Hawaii) | (Delaware)
-------------------------- -------------------------- | --------------------------
| | |
| | --------------D
-------------------------- -------------------------- | --------------------------
York Safe and Lock 100% 100% Diebold Electronic | 100% Xxxxxxx Technology,
Company, Inc. --------------- Security Systems, Inc. | ------ Incorporated
(New York) (New York) | (New York)
-------------------------- -------------------------- | --------------------------
| | |---------------E
| | 100%
-------------------------- -------------------------- | --------------------------
Diebold Texas, 100% 100% Diebold Credit | R. D. Products, Inc.
Incorporated --------------- Corporation |
(Texas) (Delaware) | (New York)
-------------------------- -------------------------- | --------------------------
| |
| |
-------------------------- -------------------------- | --------------------------
ATM Finance, Inc. 100% 100% Diebold Midwest | 100% Diebold Australia Holding
--------------- Manufacturing, Inc. | ------ Company, Inc.
(Ohio) (Delaware) | (Delaware)
-------------------------- -------------------------- | --------------------------
| | | |---------------F
| | 100% |
-------------------------- -------------------------- | --------------------------
Diebold EMEA 100% Diebold Southeast | 100% Nexus Software,
Management, Inc. ------ Manufacturing, Inc. | ------ Incorporated
(Ohio) (Delaware) | (Delaware)
-------------------------- -------------------------- | --------------------------
| | |---------------G
| |
-------------------------- -------------------------- | --------------------------
York Safe and Lock 100% 100% Diebold Safe and Lock | 100% Pioneer Systems, Inc.
Company --------------- Corporation |-------
(Pennsylvania) (Ohio) | (Pennsylvania)
-------------------------- -------------------------- | --------------------------
| |
| |
-------------------------- -------------------------- | --------------------------
Mayfair Software 100% 100% Xxxxxxx-Xxxx-Xxxxxx | 100% Diebold Transaction
Distribution, Inc. --------------- Safe Company | ------- Services, Inc
(Delaware) (Ohio) | (Delaware)
-------------------------- -------------------------- | --------------------------
| |
| |
-------------------------- -------------------------- | --------------------------
Xxxxxxx-Xxxx-Xxxxxx 100% Diebold SST Holding 100% | 100% Diebold Holding
Safe Corp. ------ Company, Inc. -------------- Company, Inc. --H
(New York) (Delaware) (Delaware)
-------------------------- -------------------------- --------------------------
| | 30% 70%|
| |----------------------------------------
-------------------------- -------------------------- |
Data Information 100% 100% Xxxxxx ---------------------
Management Systems, Inc. --------------- Communications, Inc. |
(California) (Virginia) --------------------------
-------------------------- -------------------------- Diebold Self Service
| Systems
-------------------------- -------------------------- (New York)
TFE Technology 100% 100% Verdi & Associates, Inc. --------------------------
Holdings, LLC --------------- |
(Delaware)-Disregarded Entity (New York) |
-------------------------- | -------------------------- |---------------I
| |
-------------------------- | |
Diebold Investment 100%| 100%|
------ --------------------------
Company InterBold Technologies,
(Delaware) Inc.
--------------------------
| 100% 100% (Delaware)
|------------------------------------------ --------------------------
| |
| |
-------------------------- --------------------------
Diebold Finance Company Diebold Foreign Sales
Inc. Corporation
(Delaware) (U.S. Virgin Islands)
-------------------------- --------------------------
Diebold, Incorporated
& Subsidiaries
INTERNATIONAL OPERATIONS
Revised December 31, 2004
Page 2
A--------------------------------------------------------------------------------
| |
-------------------------- | | ---------------------------
Diebold South Africa 100%| |100% The Xxxxxxx Company
(Pty.) Ltd. -----| |----- of Canada, Ltd.
(South Africa) | | (Canada)
-------------------------- | | ---------------------------
| | |
|100% | |
-------------------------- | -------------------------- | ---------------------------
Diebold Self Service | China Diebold Financial 78% |100% Diebold - Corp
Solutions Namibia (Pty) Ltd | Equipment Company, Ltd. --------|----- Systems Sdn. Bhd.
(Namibia) | (Peoples Republic of China) | (Malaysia)
-------------------------- | -------------------------- | ---------------------------
| |
| |
-------------------------- | -------------------------- | ---------------------------
Diebold EMEA Processing 100%| Diebold Singapore 100% |50% Diebold OLTP
Centre Limited -----| Pte. Ltd. --------|----- Systems A.V.V.
(United Kingdom) | (Singapore) | (Aruba, D W I)
-------------------------- | -------------------------- | ---------------------------
| | |
| 100%| |
-------------------------- | -------------------------- | ---------------------------
Cable Print B.V.B.A. 100%| Diebold Singapore |50% Starbuck Computer
-----| Pte. Ltd. |----- Empire A.V.V.
(Belgium) | (Malaysia Branch) | (Aruba, D W I)
-------------------------- | -------------------------- | ---------------------------
| |
| |
-------------------------- | -------------------------- | ---------------------------
Diebold Romania 100%| Diebold Systems Private 100% |100% Diebold Cassis
SRL -----| Limited --------|----- Manufacturing S.A. ---K
Romania | (India) | (France)
-------------------------- | -------------------------- | ---------------------------
| |
| |
-------------------------- | | ---------------------------
Diebold Services S.A. 51% | |75% P.T. Diebold 25%
-----| |----- Indonesia ---J
(France) | | (Indonesia)
-------------------------- | | ---------------------------
(Inactive) | |
| |
-------------------------- | -------------------------- | ---------------------------
Diebold, Incorporated 100%| Diebold (Thailand) 100% |100% Diebold India
Branch Office -----| Company Limited --------------- Private Limited
(United Arab Emirates) | (Thailand) (India)
-------------------------- | -------------------------- ---------------------------
| 100%|
| |
-------------------------- | --------------------------
Diebold Pacific, 100%| Diebold
Limited ----- Phillippines, Inc.
(Hong Kong) (Phillippines)
-------------------------- --------------------------
|
|--------------------------------------------------------------------------------
| | |
| 100% |100% |100%
-------------------------- -------------------------- ---------------------------
Diebold Software Diebold Pacific Limited Diebold Pacific Limited
J---- Company Limited Representative Offices Branch Office
Beijing, Shanghai, Guangzhou
(China) (China) (Taiwan)
-------------------------- -------------------------- ---------------------------
| 100%
|
--------------------------
Diebold Software Limited
Representative Offices
Beijing, Shanghai, Chengdu
(China)
--------------------------
Diebold, Incorporated
& Subsidiaries
INTERNATIONAL OPERATIONS
Revised December 31, 2004
Page 3
B C
-------------------------- | --------------------------- | --------------------------
Shanghai Diebold King 50% | 50% Shanghai Diebold Security | 100% Diebold Mexico
Safe Company, Limited ------------- Equipment Company, Ltd. |----- S.A. de C.V.
(China) | (China) (Mexico)
-------------------------- | --------------------------- --------------------------
|
|
-------------------------- |
Shanghai Diebold Security 50% |
Products Company, Limited ------|
(China)
--------------------------
D
|
-------------------------------------------------------------------------------------
| | |
| 100% | | 100%
-------------------------- | --------------------------- -------------------------- | ----------------------
Diebold Uruguay, S.A. 100% | 100% Diebold Paraguay X.X. Xxxxxxx Brasil | Diebold Peru, S.r.l.
-------|----- ------- LTDA |
(Uruguay) | (Paraguay) | (Brazil) | (Peru)
-------------------------- | --------------------------- | -------------------------- | ----------------------
| | |
| | |
-------------------------- | --------------------------- | -------------------------- |
Diebold OLTP 50% |100% Diebold Argentina | 100% Procomp Amazonia |
-------|----- ------ | ----------------------
Systems C.A. | S.A. | Industria Electronica S.A. 100% Caribbean Self Service
(Venezuela) | (Argentina) | (Brazil) ------ and Security Ltd.
-------------------------- | --------------------------- | -------------------------- |
| | | (Barbados)
| | | ----------------------
| | |
-------------------------- | --------------------------- | -------------------------- |
DPB S.A. 100% |55% DSSS Panama, S.A. | 100% Procomp Industria |
-------|----- ------ Electronica LTDA |
(Argentina) | (Panama) | (Brazil) |
-------------------------- | --------------------------- | -------------------------- | A
| | | |
| | | | 1%
-------------------------- | --------------------------- | -------------------------- | ----------------------
Diebold Panama, Inc. 100% |100% DCHC, S.A. | 100% Procomp Comercio E 99% Comercializadora
-------|----- ------ Servicos LTDA ----- Diebold Chile Limitada
(Panama) | (Panama) | (Brazil) (Chile)
-------------------------- | --------------------------- | -------------------------- ----------------------
| |
21.44%| |
------------------------- | --------------------------
Diebold Colombia, S.A. | 100% Mecaf Impressoras
16.78% 16.78% ------ S.A.
(Colombia) (Brazil)
------------------------- --------------------------
|
|
0.01% 99.99% | F
------------------------- |
Diebold Ecuador, S.A. 100% |
D---------- -------------------------
Diebold Australia
(Ecuador) Pty. Ltd.
------------------------- (Australia)
-------------------------
E |
| --------------------------- | ------------------------------
| Tecron Security 70% | 100% Diebold Security
100% | Xxx.Xxx. ------------- And Services Pty.
-------------------------- (Australia) | (Australia)
I-Denti-Proof Ltd. --------------------------- | -------------------------------
|
(Canada) |
-------------------------- |
--------------------------- | -------------------------------
RLM Monitoring 100% | 100% Diebold Australia Pty. Ltd.
Pty. Ltd. ------------- Representative Office
(Australia) | (New Zealand)
G --------------------------- | -------------------------------
| 100% |
-------------------------- |
Nexus Software UK Ltd. |
--------------------------- | -------------------------------
Cardinal Bros. Consulting 100% | 100% Diebold Safetell
(United Kingdom) Pty. Ltd. ------------- International Security Limited
-------------------------- (Australia) (Australia)
--------------------------- -------------------------------
|
--------------------------------------- |
100% | 100% |
--------------------------- -------------------------------
I Safetell Cash Handling Safetell Intenational
| 100% Pty. Ltd. Services Xxx.Xxx.
-------------------------- (Australia) (Australia)
SIAB (HK) Ltd. --------------------------- -------------------------------
(Hong Kong) 50%
-------------------------- ---------------------------
(Inactive) Safequip Automated
Systems Pty. Ltd.
(Australia)
---------------------------
Diebold, Incorporated
& Subsidiaries
INTERNATIONAL OPERATIONS
Revised December 31, 2004
Page 4
A---------------------------------------------------------------
|
|
100%
---------------------------
Diebold Election Systems
ULC.
(Nova Scotia, Canada)
---------------------------
|
100%
---------------------------
Diebold Election Systems,
Inc.
(Delaware)
---------------------------
|
----------------------------------------------------------------------------
| |
100% 100%
-------------------------- --------------------------
Global Systems Carribean, Spectrum Print & Mail
Inc. Services, Ltd.
(USVI) (Delaware)
-------------------------- --------------------------
A---------------------------------------------------------------------------------------------------
| |
| |
95%
--------------------------- --------------------------
Diebold Self Service Solutions 5% Diebold, Incorporated
Limited Liability Company ------H Moscow Representative
(Switzerland) Office
--------------------------- (Russia)
| --------------------------
|
|
|
-------------------------- | --------------------------
Diebold Portugal - Solucoes 100% | 100% Diebold Selbstbedienyngs-
Informaticas, S.A. ------------------------------------------------------- systeme (Schweiz) GmbH
(Portugal) | (Switzerland)
-------------------------- | --------------------------
| | 10%
| |
-------------------------- | --------------------------
Diebold Spain X.X. 100% | 90% Diebold Belgium B.V.B.A.
|
(Spain) | (Belgium)
-------------------------- | --------------------------
|
|
-------------------------- | --------------------------
Diebold Poland S.p. 100% | 100% Diebold Osterreich Selbst-
z.o.o. ------------------------------------------------------- bedienungssysteme GmbH
(Poland) | (Austria)
-------------------------- | --------------------------
|
|
-------------------------- | --------------------------
Diebold France SARL 100% | 100% Diebold Germany GmbH
-------------------------------------------------------
(France) | (Germany)
-------------------------- | --------------------------
|
|
-------------------------- | --------------------------
Diebold Hungary Ltd. 100% | 100% Diebold Netherlands B.V.
-------------------------------------------------------
(Hungary) | (Netherlands)
-------------------------- | --------------------------
| |
| L
-------------------------- | --------------------------
Diebold Global 100% | 100% Diebold Denmark ApS
Finance Centre Ltd. -------------------------------------------------------
(Ireland)-Disregarded entity | (Denmark)
-------------------------- | --------------------------
| | (Inactive)
| | 50%
| --------------------------
| 50% Diebold ATM Cihazlari
| L--------- Sanayi Ve Ticaret A.S.
| (Turkey)
| --------------------------
|
|
| --------------------------
| 100% Diebold Self-Service
|------------------------------ CIS Ltd.
| (Russia)
| --------------------------
|
| 100%
---------------------------
Diebold International
Limited
(United Kingdom)
---------------------------
|
--------------------------------------------------------------------------------
100% | | 77%
-------------------------- --------------------------
Sersi X.X. Xxxxxxx Italy S.r.l. 23%
-----K
(France) (Italy)
-------------------------- --------------------------
|
100% |
--------------------------
Sersi Italia
(Italy)
--------------------------
ANNEX I
TO SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
Composite Copy, as amended by the
First and Second Amendments
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement"), dated as of
April 30, 2003, is among DIEBOLD, INCORPORATED, an Ohio corporation (the
"Company"), the SUBSIDIARY BORROWERS (as hereinafter defined) from time to time
parties hereto (together with the Company, the "Borrowers"), the lenders from
time to time parties hereto (the "Lenders"), and JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago)), a national banking
association, as Agent.
RECITALS
A. The Borrowers, the lenders party thereto and Bank One, NA, as agent for
such lenders, executed a Loan Agreement dated as of December 1, 1999, as amended
(the "Existing Loan Agreement").
B. The Borrowers have requested that the Lenders, including each lender
becoming a lender on the date hereof, and the Agent amend and restate the
Existing Loan Agreement as herein provided, and the Lenders and the Agent are
willing to amend and restate the Existing Loan Agreement on the terms and
conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the Voting Stock of
any Person.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans or Facility
Letters of Credit of the same Type and, in the case of Eurocurrency Loans, in
the same Agreed Currency and for the same Interest Period, and further, in the
case of Eurodollar Loans, for the same Interest Period, made by the Lenders on
the same Borrowing Date (or converted or continued by the Lenders on the same
date of conversion or continuation).
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of Voting Stock of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"Agent" means JPMorgan Chase in its capacity as contractual representative
of the Lenders pursuant to Article XI, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article XI.
"Aggregate Commitments" means the aggregate amount, stated in U.S.
Dollars, of the Commitments of all Lenders.
"Aggregate Euro Revolving Credit Commitments" means the aggregate amount,
stated in Euro, of the Euro Revolving Credit Commitments of all of the Euro
Revolving Credit Lenders.
"Aggregate Euro Revolving Credit Outstandings" means as at any date of
determination with respect to any Euro Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's Euro Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the Euro Facility
Letter of Credit Obligations and Euro Swing Loans on such date, both stated in
Euro based on the Euro Equivalent Amount.
"Aggregate Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the sum of the U.S.
Dollar Equivalent on such date of the aggregate unpaid principal amount of such
Lender's Revolving Credit Loans on such date and the U.S. Dollar Equivalent on
such date of the amount of such Lender's Pro Rata Share of the Facility Letter
of Credit Obligations and Swing Loans on such date.
"Aggregate U.S. Revolving Credit Commitments" means the aggregate amount
in U.S. Dollars of the U.S. Revolving Credit Commitments of all of the Revolving
Credit Lenders.
"Aggregate U.S. Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the sum of the
aggregate unpaid principal amount of such Lender's U.S. Revolving Credit Loans
on such date and the amount of such Lender's Pro Rata Share of the U.S. Facility
Letter of Credit Obligations and U.S. Swing Loans on such date, both stated in
U.S. Dollars.
"Agreed Currencies" means (i) Dollars, (ii) so long as it remains an
Eligible Currency, the Euro, and (iii) any other Eligible Currency which the
Borrowers request the Agent to include as an Agreed Currency hereunder and which
is acceptable to all of the Euro Lenders and the Agent.
"Agreement" means this loan agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect on the Effective Date in the United States, applied in a
manner consistent with the audited consolidated financial statements of the
Company and its Subsidiaries for the fiscal year ending December 31, 2002;
provided, however, that, if generally accepted accounting principles in the
United States of America shall require the Company to adopt other principles,
then the financial statements required to be delivered
2
hereunder may be prepared on the basis of such other principles but when
delivered shall also be accompanied by a reconciliation, reasonably satisfactory
in scope and detail to the Agent, to permit the review of such financial
statements as if they were prepared in accordance with Agreement Accounting
Principles.
"Agreement Currency" is defined in Section 16.6.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day or (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means the amounts set forth in the Pricing Schedule on
Exhibit A hereto.
"Arranger" means X.X. Xxxxxx Securities, Inc., and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment" is defined in Section 13.3.1.
"Authorized Officer" means, with respect to any Borrower, any of the
president, the chief executive officer, any Designated Financial Officer or the
secretary of the Company or any other Person designated by any of the foregoing
in writing to the Agent from time to time to act on behalf of any Borrower (or,
if so designated, a specific Borrower) which designation has not been rescinded
in writing, in each case acting singly, provided that two Authorized Officers
shall be required to modify the wiring instructions for any Advance.
"Available Foreign Currencies" means the Agreed Currencies other than
Dollars.
"Borrowers" is defined in the preamble hereto.
"Borrowing Date" means any Business Day specified in a notice pursuant to
Section 2.3, 2.7, 2.15 or 2.16 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to the issuance of any Facility
Letter of Credit, the date the applicable Issuer issues such Facility Letter of
Credit.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, London and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in Dollars and the other Agreed Currencies are carried on in the London
interbank market (and, if the Advances which are the subject of such borrowing,
payment or rate selection are denominated in Euro, a day upon which such
clearing system as is determined by the Agent to be suitable for clearing or
settlement of the Euro is open for business), and (ii) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally are open in
Chicago, London and New York for the conduct of substantially all of their
commercial lending activities.
"Capital Stock" means (i) in the case of any corporation, all capital
stock and any securities exchangeable for or convertible into capital stock and
any warrants, rights or other options to purchase or otherwise acquire capital
stock or such securities or any other form of equity securities, (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation
3
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalents" means (i) securities issued directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) Dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender or
(y) any bank whose short-term commercial paper rating from S&P is at least
investment grade or the equivalent thereof (any such bank, an "Approved
Lender"), (iii) commercial paper issued by any Lender or Approved Lender or by
the parent company of any Lender or Approved Lender and commercial paper issued
by, or guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least investment grade or the equivalent thereof,
(iv) investment grade bonds and preferred stock of investment grade companies,
including but not limited to municipal bonds, corporate bonds, treasury bonds,
etc., (v) foreign Investments denominated in an Eligible Currency that are of
similar type of, and that have a rating comparable to, any of the Investments
referred to in the preceding clauses (i) through (iv) above, (vi) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (v) above and (vii)
other securities and financial instruments which offer a security comparable to
those listed above.
"Change of Control" means (i) a majority of the members of the Board of
Directors of Company shall not be Continuing Directors; or (ii) any Person
including a "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) which includes such Person, shall
purchase or otherwise acquire, directly or indirectly, beneficial ownership of
Voting Stock of Company and, as a result of such purchase or acquisition, any
such Person (together with its Affiliates), shall directly or indirectly
beneficially own in the aggregate Voting Stock representing more than 30% of the
combined voting power of Company's Voting Stock.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, such Lender's U.S. Revolving Credit
Commitment and Euro Revolving Credit Commitment, and "Commitments" means the
aggregate of all of the Lenders' Commitments.
"Company" is defined in the preamble hereto.
"Compliance Certificate" is defined in Section 6.1(iii).
"Condemnation" is defined in Section 7.8.
"Confidential Information" is defined in Section 10.11.
4
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guaranties, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract. The amount of any Contingent Obligation shall
be equal to the amount of the obligation that is so guarantied or supported that
is actually outstanding or otherwise due and payable from time to time, if a
fixed and determinable amount or if there is no fixed or determinable amount,
either (x) if a maximum amount is guaranteed, the maximum amount or (y) if there
is no maximum amount the amount of the obligation that is so guarantied or
supported.
"Continuing Directors" means individuals who at the beginning of any
period of two consecutive calendar years constituted the board of directors of
the Company, together with any new directors whose election by such board of
directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of such board of directors then still in office who
either were members of such board of directors at the beginning of such period
or whose election or nomination for election was previously so approved.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company or any of its Subsidiaries, are treated as a
single employer under Sections 414(b) or (c) of the Code.
"Conversion/Continuation Notice" is defined in Section 2.7.1.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (a) on any Borrowing Date fails
to make available to the Agent such Lender's Loans required to be made to a
Borrower on such Borrowing Date or (b) shall not have made a payment to the
Issuer pursuant to Section 2.15.5 or the Agent pursuant to Section 2.16. Once a
Lender becomes a Defaulting Lender, such Lender shall continue as a Defaulting
Lender until such time as such Defaulting Lender makes available to the Agent
the amount of such Defaulting Lender's Loans and/or to an Issuer such payments
requested by an Issuer together with all other amounts required to be paid to
the Agent and/or the Issuers pursuant to this Agreement.
"Designated Financial Officer" means, with respect to any Borrower, its
chief financial officer, director of treasury services, treasurer, assistant
treasurer, or similar position.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Dollars", "U.S. Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Dollar Equivalent Amount" of any currency at any date shall mean (i) the
amount of such currency if such currency is in Dollars or (ii) the Equivalent
Amount of Dollars if such currency is any currency other than Dollars,
calculated on the basis of the arithmetical mean of the buy and sell spot rates
of exchange of the Agent for such currency on the London market at 11:00 a.m.,
London time, on such date or as most recently determined by the Agent.
5
"Domestic Subsidiary" means each present and future Subsidiary of the
Company which is not a Foreign Subsidiary.
"Domestic Subsidiary Borrower" means each Domestic Subsidiary listed as a
Domestic Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in
accordance with Section 8.2.2.
"Domestic Subsidiary Opinion" means with respect to any Domestic
Subsidiary Borrower, a legal opinion of counsel to such Domestic Subsidiary
Borrower addressed to the Agent and the Lenders concluding that such Domestic
Subsidiary Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on Exhibit B, with such assumptions,
qualifications and deviations therefrom as the Agent shall approve.
"EBIT" means, for any period, the sum of (a) the consolidated net income
(or loss) of the Company and its Subsidiaries for such period determined in
conformity with Agreement Accounting Principles, plus (b) to the extent deducted
in determining such net income, income taxes, and Interest Expense, and any
extraordinary and non-recurring losses and non-cash charges and related tax
effects in accordance with Agreement Accounting Principles, minus (c) to the
extent included in determining such net income, each of the following, without
duplication: (i) the income of any Person (other than a Wholly Owned Subsidiary
of the Company) in which any Person other than the Company or any of its
Subsidiaries has a joint interest or a partnership interest or other ownership
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Company or any of its Subsidiaries by such Person during
such period, (ii) the income of any Person accrued prior to the date it becomes
a Subsidiary of the Company or is merged into or consolidated with the Company
or any of its Subsidiaries or that Person's assets are acquired by the Company
or any of its Subsidiaries, (iii) gains from the sale, exchange, transfer or
other disposition of property or assets not in the ordinary course of business
of the Company and its Subsidiaries, and related tax effects in accordance with
Agreement Accounting Principles, (iv) any other extraordinary or non-recurring
gains or other income not from the continuing operations of the Company or its
Subsidiaries, and related tax effects in accordance with Agreement Accounting
Principles and (v) the income of any Subsidiary of the Company (other than
Subsidiaries which are not material in the aggregate as agreed upon between the
Company and the Agent) to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary.
"Effective Date" means the date on which the conditions precedent set
forth in Sections 4.1 and 4.2 are satisfied.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which a Dollar Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, (x) currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are
introduced, (y) such currency is, in the determination of the Agent, no longer
readily available or freely traded or (z) in the determination of the Agent, a
Dollar Equivalent Amount of such currency is not readily calculable, the Agent
shall promptly notify the Lenders and the Company, and such currency shall no
longer be an Agreed Currency until such time as all of the Lenders agree to
reinstate such currency as an Agreed Currency and promptly, but in any event
within five Business Days of receipt of such notice from the
6
Agent, the Borrower shall repay all Loans in such affected currency or convert
such Loans into Loans in Dollars or another Agreed Currency, subject to the
other terms set forth in Article II.
"Environmental Laws" means, with respect to the Company or any of its
Subsidiaries, any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (a) the protection of
the environment, (b) the effect of the environment on human health, (c)
emissions, discharges or releases of Hazardous Substances into surface water,
ground water or land, or (d) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances or
the clean-up or other remediation thereof, in each case, applicable to the
Company's or any of its Subsidiary's operations or Property.
"Equivalent Amount" of any currency with respect to any amount of any
other currency at any date means the equivalent in such currency of such amount
of such other currency, calculated on the basis of the arithmetical mean of the
buy and sell spot rates of exchange of the Agent for such currency at 11:00
a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of l974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council Regulation (EC)
No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or,
if different, the then lawful currency of the member states of the European
Union that participate in the third stage of Economic and Monetary Union.
"Euro Equivalent Amount" of any currency at any date shall mean (i) the
amount of such currency if such currency is in Euros or (ii) the Equivalent
Amount of Euros if such currency is any currency other than Euros, calculated on
the basis of the arithmetical mean of the buy and sell spot rates of exchange of
the Agent for such currency on the London market at 11:00 a.m., London time, on
such date or as most recently determined in good faith by the Agent.
"Euro Facility Letter of Credit" means any Letter of Credit for the
account of a Foreign Subsidiary Borrower or, if denominated in an Agreed
Currency other than Dollars, the Company.
"Euro Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to Euro Facility Letters of Credit.
"Euro Lender" means any Euro Revolving Credit Lender.
"Euro Loan" means any Euro Revolving Credit Loan.
"Euro Revolving Credit Commitment" means, as to any Lender at any time,
its obligation to make Revolving Credit Loans to the Borrowers under Section
2.1.2 in an aggregate Euro Equivalent Amount not to exceed at any time
outstanding the Euro amount set forth opposite such Lender's name in Schedule
1.1(a) under the heading "Euro Revolving Credit Commitment" or as otherwise
established pursuant to Section 13.3, as such amount may be reduced or increased
from time to time pursuant to Section 2.4, 13.3 and the other applicable
provisions hereof.
"Euro Revolving Credit Lender" means any Lender which has a Euro Revolving
Credit Commitment.
7
"Euro Revolving Credit Loans" means Revolving Credit Loans made to the
Borrowers under Section 2.1.2.
"Euro Swing Loan" is defined in Section 2.16.
"Eurocurrency Advance" means a Multicurrency Advance which bears interest
at the Eurocurrency Rate.
"Eurocurrency Loan" means a Multicurrency Loan which bears interest at the
Eurocurrency Rate.
"Eurocurrency Rate" means, with respect to a Eurocurrency Loan for the
relevant Interest Period, the sum of (a) the Eurocurrency Reference Rate
applicable to such Interest Period, plus (b) the amount of all reserves, costs
or similar requirements relating to the funding of the relevant Available
Foreign Currency, as determined by the Agent, plus (c) the Applicable Margin.
"Eurocurrency Reference Rate" means, with respect to each Interest Period
for a Multicurrency Loan:
(a) the rate per annum quoted at or about 11:00 a.m. (London time) on
the Quotation Date for such period on that page of the Bloombergs'
or Reuters' Screen, as determined by the Agent, which displays
British Bankers Association Interest Settlement Rates for deposits
in the relevant Available Foreign Currency for such period or, if
such page or service shall cease to be available, such other page or
such other service (as the case may be) for the purpose of
displaying British Bankers Association Interest Settlement Rates for
such currency as the Agent, in its discretion, shall select.
(b) If no such rate is displayed for the relevant currency and the
relevant period and there is no Available Foreign Currency
alternative service on which two or more such quotations for the
Available Foreign Currency are displayed, "Eurocurrency Reference
Rate" will be the rate at which deposits in the Available Foreign
Currency of that amount are offered by the Agent for that period to
prime banks in the London inter bank market at or about 11:00 a.m.
(London time) on the Quotation Date for such period.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the rate determined by the Agent to be the rate at
which the Agent offers to place deposits in Dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of JPMorgan Chase's relevant Eurodollar Loan and having a maturity
approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
8
"Exchange Rate" means with respect to any non-U.S. Dollar currency on any
date, the rate at which such currency may be exchanged into U.S. Dollars, as set
forth on such date on the relevant Bloomberg currency page at or about 11:00
a.m., Chicago time. In the event that such rate does not appear on any Bloomberg
currency page, the "Exchange Rate" with respect to such non-U.S. Dollar currency
shall be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Agent and the Company or,
in the absence of such agreement, such "Exchange Rate" shall instead be the
Agent's spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non-U.S. Dollar currency are then being
conducted, at or about 10:00 a.m., local time, on such date for the purchase of
U.S. Dollars with such non-U.S. Dollar currency, for delivery three Business
Days later; provided, that if at the time of any such determination, no such
spot rate can reasonably be quoted, the Agent may use any reasonable method as
it deems applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Facility Letter of Credit" means a Letter of Credit issued by an Issuer
pursuant to Section 2.15.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of a
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and, without duplication, (b) the aggregate
undrawn face amount of the outstanding Facility Letters of Credit.
"Facility Termination Date" means the earlier to occur of (a) April 27,
2010 or (b) the date on which the Revolving Credit Commitments are terminated
pursuant to Article VIII.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion or, when used in connection with any Advance denominated in any
Eligible Currency, "Federal Funds Effective Rate" means the correlative rate of
interest with respect to such Eligible Currency as determined by the Agent in
its sole discretion for such day.
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"First Amendment" shall mean the First Amendment to this Agreement dated
April 28, 2004 among the Borrowers, the Lenders and the Agent.
"First Amendment Effective Date" shall mean the date as of which the First
Amendment is effective.
"Fixed Rate" means the Eurodollar Rate or the Eurocurrency Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
9
"Floating Rate" means, for any day, a rate per annum (based on a year of
365 or 366 days as appropriate) equal to the sum of (a) the Applicable Margin
plus (b) the Alternate Base Rate for such day, in each case changing when and as
the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means each Subsidiary organized under the laws of a
jurisdiction outside of the United States.
"Foreign Subsidiary Borrower" means each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in
accordance with Section 8.2.2.
"Foreign Subsidiary Opinion" means with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Agent and the Lenders concluding that such Foreign Subsidiary
Borrower and the Loan Documents to which it is a party substantially comply with
the matters listed on Exhibit C, with such assumptions, qualifications and
deviations therefrom as the Agent shall approve.
"Governmental Authority" means any nation or government, any state, or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor" means (a) with respect to the Obligations of the Subsidiary
Borrowers, the Company and each present and future Domestic Subsidiary of the
Company required to execute a Guaranty pursuant to Section 2.18 and any other
Person executing a Guaranty at any time, and (b) with respect to the Company,
each present and future Domestic Subsidiary of the Company required to execute a
Guaranty pursuant to Section 2.18 and any other Person executing a Guaranty at
any time.
"Guaranty" means, with respect to the Company, the guarantee contained in
Article IX and, with respect to any other Guarantor, each guaranty agreement in
substantially the form of Exhibit D hereto or, in the case of Foreign
Subsidiaries that are Guarantors, such other form agreed to by the Agent and the
Company duly executed and delivered by each such Guarantor to the Agent,
including any amendment, modification, renewal or replacement of such guaranty
agreement.
"Hazardous Substances" means any material or substance: (1) which is or
becomes defined as a hazardous substance, pollutant, or contaminant, pursuant to
the Comprehensive Environmental Response Compensation and Liability Act
("CERCLA") (42 USC Section 9601 et. seq.) as amended and regulations promulgated
under it; (2) containing gasoline, oil, diesel fuel or other petroleum products;
(3) which is or becomes defined as hazardous waste pursuant to the Resource
Conservation and Recovery Act ("RCRA") (42 USC Section 6901 et. seq.) as amended
and regulations promulgated under it; (4) containing polychlorinated biphenyls
(PCBs); (5) containing asbestos; (6) which is radioactive; (7) the presence of
which requires investigation or remediation under any Environmental Law; (8)
which is or becomes defined or identified as a hazardous waste, hazardous
substance, hazardous or toxic chemical, pollutant, contaminant, or biologically
Hazardous Substance under any Environmental Law.
"Indebtedness" of a Person means, without duplication, such Person's (a)
obligations for borrowed money or similar obligations, (b) obligations
representing the deferred purchase price of Property or
10
services (other than accounts payable and/or accrued expenses and commercial
Letters of Credit with respect to the foregoing, in each case arising in the
ordinary course of such Person's business payable in accordance with customary
practices), (c) obligations, whether or not assumed, secured by Liens on
property now or hereafter owned or acquired by such Person, (d) obligations
which are evidenced by notes, acceptances, or other instruments (other than
Financial Contracts), to the extent of the amounts actually borrowed, due,
payable or drawn, as the case may be, (e) Capitalized Lease Obligations, (f) all
obligations in respect of Letters of Credit (other than commercial Letters of
Credit referenced in clause (b) above), whether drawn or undrawn, contingent or
otherwise, (g) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person, (h)
Off-Balance Sheet Liabilities, and (i) Contingent Obligations with respect to
any of the foregoing.
"Interest Coverage Ratio" means, as of the end of any fiscal quarter, the
ratio of (a) EBIT to (b) Interest Expense, in each case calculated for the four
consecutive fiscal quarters then ending, on a consolidated basis for the Company
and its Subsidiaries in accordance with Agreement Accounting Principles.
"Interest Expense" means, with respect to any period, the aggregate of all
interest expense reported by the Company and its Subsidiaries in accordance with
Agreement Accounting Principles during such period, net of any cash interest
income received by the Company and its Subsidiaries during such period from
Investments. As used in this definition, the term "interest" shall include,
without limitation, all interest, fees and costs payable with respect to the
obligations under this Agreement (other than fees and costs which may be
capitalized as transaction costs in accordance with Agreement Accounting
Principles), any discount in respect of sales of accounts receivable and/or
related contract rights and the interest portion of Capitalized Lease payments
during such period, all as determined in accordance with Agreement Accounting
Principles; provided, however, that non-cash interest expense in an amount not
to exceed $15,000,000 incurred in the fiscal quarter ended December 31, 2002 and
arising from a settlement with the IRS regarding the deductibility of interest
on debt related to corporate owned life insurance shall be excluded from
Interest Expense.
"Interest Period" means with respect to any Fixed Rate Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Fixed Rate Loan and ending
one, two, three, or six months thereafter, or such other period as agreed
upon by the Lenders making such Fixed Rate Loan, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Fixed Rate Loan and ending
one, two, three or six months thereafter, or such other period as agreed
upon by the Lenders, as selected by the relevant Borrower by irrevocable
notice to the Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Fixed Rate Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
11
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Fixed Rate Loan that
would otherwise extend beyond the Facility Termination Date, may be
elected but shall end on the Facility Termination Date (and such
Loan shall be due and payable on the Facility Termination Date and
any amounts due under Section 3.4 shall be payable) unless the
Facility Termination Date is extended on or before the last day of
such Interest Period to a date beyond the end of such Interest
Period; and
(iii) any Interest Period pertaining to a Fixed Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable and/or
accrued expenses arising in the ordinary course of business payable in
accordance with customary practices and loans to employees in the ordinary
course of business) or contribution of capital by such Person; stocks, bonds,
mutual funds, partnership interests, notes, debentures or other securities owned
by such Person; any deposit accounts and certificates of deposit owned by such
Person; and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person (other than Financial Contracts).
"Issuers" or "Issuer" means (i) JPMorgan Chase, and (ii) any Lending
Installation of JPMorgan Chase as JPMorgan Chase may determine to be the issuer
for any Facility Letter of Credit.
"Joinder Agreement" means the Joinder Agreement to be entered into by each
Subsidiary Borrower subsequent to the date hereof pursuant to Section 8.2.2,
substantially in the form of Exhibit E hereto.
"JPMorgan Chase" means JPMorgan Chase Bank, N.A., a national banking
association.
"Judgment Currency" is defined in Section 16.6.
"Lender Addition and Acknowledgement Agreement" means a Lender Addition
and Acknowledgement Agreement, in form and substance reasonably satisfactory to
the Agent, executed pursuant to Section 2.4(b).
"Lenders" means the lending institutions listed on the signature pages of
this Agreement or otherwise party hereto as a Lender from time to time, and
their respective successors and, to the extent permitted by Section 13.3,
assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or Affiliate of such Lender or the Agent, as the case
may be.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
12
"Letter of Credit Collateral Account" is defined in Section 2.15.7.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, fixed or floating charge, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's Revolving Credit
Loans and, with respect to the Swing Lender, Swing Loans.
"Loan Documents" means this Agreement, the Notes, any Rate Hedging
Agreements with any Lenders or their Affiliates and the other agreements,
certificates and other documents contemplated hereby or executed or delivered
pursuant hereto by any Borrower or any Guarantor at any time with or in favor of
the Agent or any Lender.
"London Banking Day" means any day on which banks in London are open for
substantially all of their banking business, including dealings in foreign
currency and exchange.
"Margin Stock" means "margin stock" as defined in Regulations U or X or
"marginable OTC stock" or "foreign margin stock" within the meaning of
Regulation T.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers and Guarantors, taken as a whole, to pay the Obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multicurrency Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type, in the same Available Foreign Currency and for the
same Interest Period.
"Multicurrency Loans" means, Euro Loans and any Swing Loans denominated in
currencies other than U.S. Dollars.
"Multiemployer Plan" means a plan defined in Section 4001(a)(3) of ERISA
to which the Company or any member of the Controlled Group has an obligation to
contribute.
"Net Worth" means, as of any date, the amount of any capital stock, paid
in capital and similar equity accounts plus (or minus in the case of a deficit)
the capital surplus and retained earnings of the Company and its Subsidiaries on
a consolidated basis, all as determined in accordance with Agreement Accounting
Principles.
"Non-Confidential Information" is defined in Section 10.11.
"Non-Excluded Taxes" is defined in Section 3.6.1.
"Notes" means the collective reference to the Revolving Credit Notes.
13
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means collectively, the unpaid principal of and interest on
the Loans, all obligations and liabilities pursuant to the Facility Letters of
Credit, all Rate Hedging Obligations and all other obligations and liabilities
of each Borrower and each Guarantor to the Agent or the Lenders (including
Affiliates of such Lenders in the case of Rate Hedging obligations) under this
Agreement and the other Loan Documents (including, without limitation, interest
accruing at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest accruing
at the then applicable rate provided in this Agreement or any other applicable
Loan Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
any Borrower or any Guarantor, as the case may be, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, the other Loan Documents or any other document made,
delivered or given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all reasonable fees and
disbursements of counsel to the Agent or to the Lenders that are required to be
paid by any Borrower or any Guarantor pursuant to the terms of this Agreement or
any other Loan Document).
"Obligor" means any Person which is obligated to make payments for the
provision of goods and services pursuant to a Contract.
"Off-Balance Sheet Liability of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, and including without limitation
the outstanding amount sold or financed under any Permitted Securitization
Transaction.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last Business Day of each March, June, September
and December occurring after the Effective Date, commencing March 31, 2003.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Securitization Transaction" is defined in Section 6.10(iii).
"Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, company or
other entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Company or any member of the Controlled Group has any
obligation to contribute to on or after the Effective Date.
14
"Prime Rate" means the per annum rate announced or established by the
Agent from time to time as its "prime rate" (it being acknowledged that such
announced rate may not necessarily be the lowest rate charged by the Agent to
any of its customers) or the corporate base rate of interest announced or
established by any Affiliate of the Agent or, when used in connection with any
Advance denominated in any Eligible Currency, "Prime Rate" means the correlative
floating rate of interest customarily applicable to similar extensions of credit
to corporate borrowers denominated in such currency in the country of issue, as
determined by the Agent, which Prime Rate shall change simultaneously with any
change in such announced or established rates.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment (calculated using the U.S. Dollar Equivalent thereof) to the
Aggregate Commitment (calculated using the U.S. Dollar Equivalent thereof),
provided that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility
Letters of Credit, U.S. Swing Loans and facility fees with respect to the U.S.
Revolving Credit Commitment, Pro Rata Share means, for each Lender, the ratio
such Lender's U.S. Revolving Credit Commitment bears to the Aggregate U.S.
Revolving Credit Commitments, and (b) with respect to Euro Revolving Credit
Loans, Euro Facility Letters of Credit, Euro Swing Loans and facility fees with
respect to the Euro Revolving Credit Commitment, Pro Rata Share means, for each
Lender, the ratio such Lender's Euro Revolving Credit Commitment bears to the
Aggregate Euro Revolving Credit Commitments. If at any time the Commitments have
been terminated, the amount of any Commitment for the purposes of this
definition of "Pro Rata Share" only shall be deemed equal to the amount of such
Commitment immediately prior to its termination.
"Property" of a Person means any and all property, whether real, personal,
movable, immovable, tangible, intangible, or mixed, of such Person, or other
assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 13.3.1.
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate is to be determined hereunder, means the date on which quotations
would ordinarily be given by prime Lenders in the London inter-bank market for
deposits in the Available Foreign Currency in relation to which such rate is to
be determined for delivery on the first day of that period, provided that, if,
for such period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
15
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Reimbursement Obligations" means, at any time, the aggregate of the
obligations of the Borrowers to the Lenders and the Issuers in respect of all
unreimbursed payments or disbursements made by the Issuers and the Lenders under
or in respect of the Facility Letters of Credit.
"Release" means any release, spill, leak, discharge or leaching of any
Hazardous Substances into the environment in violation of any Environmental Law.
"Remedial Action" means an action to address a Release or other violation
of Environmental Laws required by any Environmental Law.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section with respect to a Plan
subject to Title IV of ERISA, excluding, however, such events as to which the
PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with Section 4043(a) of
ERISA or of the minimum funding standard under Section 412(d) of the Code.
"Required Euro Revolving Credit Lenders" means (a) at any time prior to
the termination of the Euro Revolving Credit Commitments, Euro Revolving Credit
Lenders holding not less than 51% of the aggregate Euro Revolving Credit
Commitments of all Euro Revolving Credit Lenders and (b) at any time after the
termination of the Euro Revolving Credit Commitments, Euro Revolving Credit
Lenders whose aggregate Euro Revolving Credit Loans and Pro Rata Shares of Euro
Facility Letters of Credit aggregate at least 51% date of the Aggregate Euro
Revolving Credit Loans of all Euro Revolving Credit Lenders and all Euro
Facility Letters of Credit.
"Required Lenders" means (a) at any time prior to the termination of the
Commitments, Lenders holding not less than 51% of the U.S. Dollar Equivalent of
the aggregate Commitments of all Lenders; and (b) at any time after the
termination of the Commitments, Lenders whose Aggregate Revolving Credit
Outstandings aggregate at least 51% of the Aggregate Revolving Credit
Outstandings of all Lenders.
"Required U.S. Revolving Credit Lenders" means (a) at any time prior to
the termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders holding not less than 51% of the aggregate U.S. Revolving Credit
Commitments of all U.S. Revolving Credit Lenders and (b) at any time after the
termination of the U.S. Revolving Credit Commitments, U.S. Revolving Credit
Lenders whose aggregate U.S. Revolving Credit Loans and Pro Rata Shares of U.S.
Facility Letters of Credit aggregate at least 51%
16
date of the Aggregate U.S. Revolving Credit Loans of all U.S. Revolving Credit
Lenders and all U.S. Facility Letters of Credit.
"Requirement of Law" means as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"Reserve Requirement" means, with respect to an Interest Period for
Eurodollar Loans or Eurocurrency Loans, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves),
assessments or similar requirements under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements prescribed
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D).
"Revolving Credit Advance" means a borrowing hereunder (or continuation or
conversion thereof) consisting of the several Revolving Credit Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and in the case of Fixed Rate Advances, for the same
Interest Period.
"Revolving Credit Commitments" means the Euro Revolving Credit Commitments
and the U.S. Revolving Credit Commitments.
"Revolving Credit Committed Percentage" means as to any Lender at any
time, the percentage which the U.S. Dollar Equivalent of such Lender's Revolving
Credit Commitments then constitutes of the aggregate U.S. Dollar Equivalent of
the Revolving Credit Commitments of all Lenders (or, if the Revolving Credit
Commitments have terminated or expired, the percentage which (a) the U.S. Dollar
Equivalent of the Aggregate Revolving Credit Outstandings of such Lender at such
time then constitutes of (b) the U.S. Dollar Equivalent of the Aggregate
Revolving Credit Outstandings of all Revolving Credit Lenders at such time).
"Revolving Credit Lenders" means those Lenders which have a Revolving
Credit Commitment or, if such Commitments shall have been terminated, have
outstanding Revolving Credit Loans or Facility Letter of Credit Obligations.
"Revolving Credit Loans" means, with respect to a Lender, such Lender's
revolving credit loans made pursuant to Section 2.1.
"Revolving Credit Note" is defined in Section 2.2.3.
"S&P" means Standard & Poor's Rating Services, a division of The McGraw
Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
property by any Person with the intent to lease or use such Property as lessee
or in any other capacity.
"SEC" means the Securities and Exchange Commission or any governmental
authority succeeding to any or all of the functions of the Securities and
Exchange Commission.
17
"Second Amendment" shall mean the Second Amendment to this Agreement dated
April 27, 2005 among the Borrowers, the Lenders and the Agent.
"Second Amendment Effective Date" shall mean the date as of which the
Second Amendment is effective.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Securitization Entity" means a wholly-owned Subsidiary of the Company
that engages in no activities other than Permitted Securitization Transactions
and any necessary related activities and owns no assets other than as required
for Permitted Securitization Transactions and (i) no portion of the Indebtedness
(contingent or otherwise) of which is guaranteed by the Company or any
Subsidiary of the Company or is recourse to or obligates the Company or any
Subsidiary of the Company in any way, other than pursuant to customary
representations, warranties, covenants, indemnities and other obligations
entered into in connection with a Permitted Securitization Transaction, and (ii)
to which neither the Company nor any Subsidiary of the Company has any material
obligation to maintain or preserve such entity's financial condition or cause
such entity to achieve certain levels of operating results.
"Significant Subsidiary" means each present or future subsidiary of the
Company which would constitute a "significant subsidiary" within the meaning of
Rule 1-02 of Regulation S-X as currently in effect promulgated by the SEC.
"Single Employer Plan" means a Plan which is maintained by the Company or
any member of the Controlled Group for employees of the Company or any member of
the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
means a Subsidiary of the Company.
"Subsidiary Borrowers" means Foreign Subsidiary Borrowers and Domestic
Subsidiary Borrowers.
"Substantial Portion" means, with respect to the Property of the Company
and its Subsidiaries, Property which (a) represents more than 15% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, (b) is responsible for more than 15% of the consolidated
net sales of the Company and its Subsidiaries as reflected in the financial
statements referred to in clause (a) above, (c) represents more than 25% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as of the
Effective Date or (d) is responsible for more than 25% of the consolidated net
sales of the Company and its Subsidiaries as reflected in the financial
statements referred to in clause (c) above.
"Swing Lender" means JPMorgan Chase, together with its Lending
Installations.
"Swing Loans" means U.S. Swing Loans and Euro Swing Loans.
18
"Tangible Net Worth" means, as of any date, the difference of (i) Net
Worth, minus (ii) to the extent included in determining the amount under the
foregoing clause (i), the net book value of goodwill, cost in excess of fair
value of net assets acquired, patents, trademarks, tradenames and copyrights,
treasury stock and all other assets which are deemed intangible assets under
Agreement Accounting Principles.
"Total Assets" means the total assets of the Company and its Subsidiaries,
determined in accordance with Agreement Accounting Principles.
"Total Debt" as of any date, means all of the following for the Company
and its Subsidiaries on a consolidated basis and without duplication: (i) all
debt for borrowed money and similar monetary obligations evidenced by bonds,
notes, debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets, in each case whether direct or indirect (other than accounts payable
and/or accrued expenses and commercial Letters of Credit with respect to the
foregoing, in each case arising in the ordinary course of such Person's business
payable in accordance with customary practices); (ii) all liabilities secured by
any Lien existing on property owned or acquired subject thereto, whether or not
the liability secured thereby shall have been assumed; (iii) all reimbursement
obligations under outstanding Letters of Credit (other than commercial Letters
of Credit referenced in clause (i) above) in respect of drafts which (A) may be
presented or (B) have been presented and have not yet been paid and are not
included in clause (i) above; (iv) all Off Balance Sheet Liabilities; and (v)
all guarantees and other Contingent Obligation relating to indebtedness or
liabilities of the type described in the foregoing clauses (i), (ii) or (iii);
provided that money borrowed by the Company against the cash value of life
insurance policies owned by the Company shall not be considered part of Total
Debt and Indebtedness consisting of avals by any of the Company's Subsidiaries
for the benefit of, and with respect to obligations which are not classified as
Indebtedness of, any of the Company's other Subsidiaries which are entered into
in the ordinary course of business and consistent with standard business
practices, shall not be considered part of Total Debt.
"Total Net Debt" means, at any time, Total Debt minus all cash and Cash
Equivalents with maturities of less than one year of the Company and its
Subsidiaries calculated on a consolidated basis, as calculated in accordance
with Agreement Accounting Principles.
"Total Net Debt to Capitalization Ratio" means the ratio of Total Net Debt
to the sum of (a) Total Net Debt plus (b) Net Worth, as calculated in accordance
with Agreement Accounting Principles.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Eurocurrency Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the actuarial
present value of all benefit liabilities under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefit
liabilities, all determined as of the then most recent valuation date for such
Plans in accordance with Section 4001(a)(18) of ERISA.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
19
"U.S. Dollar Equivalent" means, on any date with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"U.S. Facility Letter of Credit" means any Letter of Credit for the
account of the Company.
"U.S. Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to U.S. Facility Letters of Credit.
"U.S. Lender" means any U.S. Revolving Credit Lender.
"U.S. Loan" means any U.S. Revolving Credit Loan.
"U.S. Revolving Credit Commitment" means, as to any Lender at any time,
its obligation to make Revolving Credit Loans to the Company in Dollars in an
aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
set forth opposite such Lender's name in Schedule 1.1(a) under the heading "U.S.
Revolving Credit Commitment" or as otherwise established pursuant to Section
13.3, as such amount may be reduced or increased from time to time pursuant to
Sections 2.4, 13.3 and the other applicable provisions hereof.
"U.S. Revolving Credit Lender" means any Lender which has a U.S. Revolving
Credit Commitment.
"U.S. Revolving Credit Loans" means Revolving Credit Loans made to the
Company pursuant to Section 2.1.1.
"U.S. Swing Loan" is defined in Section 2.16.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, trustees or
similar persons thereof.
"Wholly Owned Subsidiary" of a Person means any other Person of which 100%
of the outstanding Voting Stock of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly Owned
Subsidiaries of such Person, or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
1.2 Rules of Construction. All terms defined in Section 1.1 shall include
both the singular and the plural forms thereof and shall be construed
accordingly. Use of the terms "herein", "hereof", and "hereunder" shall be
deemed references to this Agreement in its entirety and not to the Section or
clause in which such term appears. References to "Sections" and "subsections"
shall be to Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Notwithstanding anything herein, in any
financial statements of the Company or in Agreement Accounting Principles to the
contrary, for purposes of calculating the Applicable Margin and of calculating
and determining compliance with the financial covenants in Sections 6.17 and
6.18, including defined terms used therein, any Acquisitions made by the Company
or any of its Subsidiaries, including through mergers or consolidations and
including the incurrence of all Indebtedness related thereto and any other
related financial transactions, during the period for which such financial
covenants were calculated shall be deemed to have occurred on the first day of
the relevant period for which such financial covenants and the Applicable Margin
were calculated on a pro forma basis acceptable to the Agent.
20
ARTICLE II
THE CREDITS
2.1 Commitments.
2.1.1 From and including the Effective Date and prior to the Facility
Termination Date, each U.S. Revolving Credit Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make U.S. Revolving Credit
Loans to the Company and the Domestic Subsidiary Borrowers from time to time so
long as after giving effect thereto and to any concurrent repayment of Loans the
Aggregate U.S. Revolving Credit Outstandings of each U.S. Revolving Credit
Lender are equal to or less than its U.S. Revolving Credit Commitment. Subject
to the terms of this Agreement, the Company and the Domestic Subsidiary
Borrowers may borrow, repay and reborrow U.S. Revolving Credit Loans at any time
prior to the Facility Termination Date. The U.S. Revolving Credit Loans may be
Floating Rate Loans or Eurodollar Loans, or a combination thereof selected in
accordance with Sections 2.3 and 2.7. The U.S. Revolving Credit Commitments to
lend hereunder shall expire on the Facility Termination Date.
2.1.2 From and including the Effective Date and prior to the Facility
Termination Date, each Euro Revolving Credit Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Euro Revolving Credit
Loans to the Company and the Foreign Subsidiary Borrowers from time to time so
long as after giving effect thereto and to any concurrent repayment of Loans the
Aggregate Euro Revolving Credit Outstandings of each Euro Revolving Credit
Lender are equal to or less than its Euro Revolving Credit Commitment. Subject
to the terms of this Agreement, the Company and the Foreign Subsidiary Borrowers
may borrow, repay and reborrow Euro Revolving Credit Loans at any time prior to
the Facility Termination Date. The Euro Revolving Credit Loans will be
Eurocurrency Loans as selected in accordance with Sections 2.3 and 2.7. The Euro
Revolving Credit Commitments to lend hereunder shall expire on the Facility
Termination Date.
2.2 Repayment of Loans; Evidence of Debt.
2.2.1 (a) The Company and each Domestic Subsidiary Borrower hereby
unconditionally promise to pay to the Agent for the account of each U.S.
Revolving Credit Lender in U.S. Dollars the then unpaid principal amount of each
U.S. Revolving Credit Loan of such Lender made to the Company or such Domestic
Subsidiary Borrower on the Facility Termination Date and on such other dates and
in such other amounts as may be required from time to time under the terms of
this Agreement. The Company and each Domestic Subsidiary Borrower hereby further
agree to pay to the Agent for the account of each U.S. Revolving Credit Lender
interest in U.S. Dollars on the unpaid principal amount of the U.S. Revolving
Credit Loans from time to time outstanding until payment thereof in full at the
rates per annum, and on the dates, set forth in Section 2.8.
(b) The Company and each Foreign Subsidiary Borrower hereby
unconditionally promise to pay to the Agent for the account of each Euro
Revolving Credit Lender in the relevant Available Foreign Currency the then
unpaid principal amount of each Euro Revolving Credit Loan of such Lender made
to the Company or such Foreign Subsidiary Borrower on the Facility Termination
Date and on such other dates and in such other amounts as may be required from
time to time under the terms of this Agreement. The Company and each Foreign
Subsidiary Borrower hereby further agree to pay to the Agent for the account of
each Euro Revolving Credit Lender interest in the relevant Available
21
Foreign Currency on the unpaid principal amount of the Euro Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 2.8.
2.2.2 The books and records of the Agent and of each Lender shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrowers therein recorded; provided, however,
that the failure of any Lender or the Agent to maintain any such books and
records or any error therein, shall not in any manner affect the obligation of
the Borrowers to repay (with applicable interest) the Loans made to such
Borrowers by such Lender in accordance with the terms of this Agreement.
2.2.3 The Borrowers agree that, upon the request to the Agent by any
Lender from time to time and the subsequent request to the Company by the Agent,
the relevant Borrowers will execute and deliver to such Lender promissory notes
of each Borrower evidencing the Revolving Credit Loans of any such requesting
Revolving Credit Lender, substantially in the form of Exhibit F-1 with
appropriate insertions as to date, currency and principal amount (each, a
"Revolving Credit Note"); provided, that the delivery of such Notes shall not be
a condition precedent to the Effective Date or any Advance.
2.3 Procedures for Borrowing. (a) The Company and each Domestic Subsidiary
Borrower may borrow under the U.S. Revolving Credit Commitments and the Company
and each Foreign Subsidiary Borrower may borrow under the Euro Revolving Credit
Commitments, in each case from time to time prior to the Facility Termination
Date on any Business Day.
(b) In the case of a borrowing under the U.S. Revolving Credit
Commitments, the Company and each borrowing Domestic Subsidiary Borrower shall
give the Agent irrevocable notice (which notice must be received by the Agent
prior to 11:00 a.m., Chicago time) (i) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be Eurodollar Loans, or (ii) one Business Day prior to the
requested Borrowing Date otherwise, specifying in each case (w) the amount to be
borrowed, (x) the requested Borrowing Date, (y) whether the borrowing is to be
of Eurodollar Loans, Floating Rate Loans or a combination thereof and (z) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Periods therefor. Each
borrowing under the U.S. Revolving Credit Commitments shall be in an amount
equal to (A) in the case of Floating Rate Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if the then aggregate available U.S.
Revolving Credit Commitments are less than $5,000,000, such lesser amount) and
(B) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Company
or any such Domestic Subsidiary Borrower, as the case may be, the Agent shall
promptly notify each Revolving Credit Lender thereof. Not later than noon,
Chicago time on each requested Borrowing Date each Revolving Credit Lender shall
make an amount equal to its Pro Rata Share of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Agent at its Chicago office specified in Section 14.1 in U.S. Dollars and in
immediately available funds. The Agent shall on such date credit the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Agent by the Revolving Credit Lenders and in like funds as
received by the Agent.
(c) In the case of a borrowing under the Euro Revolving Credit
Commitments, the Company and each Foreign Subsidiary Borrower shall give the
Agent irrevocable notice (which notice must be received by the Agent prior to
11:00 a.m., London time three Business Days prior to the requested Borrowing
Date) specifying in each case (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) the Available Foreign Currency thereof and (iv) the length
of the initial Interest Period therefor. Each borrowing by the Company or a
Foreign Subsidiary Borrower under Section 2.1.2
22
shall be in an Available Foreign Currency. Each such borrowing by the Company or
any Foreign Subsidiary Borrower shall be in an amount equal to an amount in the
relevant Available Foreign Currency which is 5,000,000 units or a whole multiple
of 1,000,000 units in excess thereof or such other amounts as may be agreed upon
between the Company and the Agent. Upon receipt of any such notice from any such
Borrower, the Agent shall promptly notify the relevant Revolving Credit Lenders
with respect to such Borrowing. Not later than 1:00 p.m., local time of the
Agent's funding office for such Borrower, on the requested Borrowing Date, each
such Revolving Credit Lender shall make an amount equal to its Pro Rata Share of
the principal amount of such Revolving Loans requested to be made on such
Borrowing Date available to the Agent at the Agent's funding office for such
Borrower specified by the Agent from time to time by notice to such Revolving
Credit Lenders and in immediately available or other same day funds customarily
used for settlement in the relevant Available Foreign Currency. The amounts made
available by each such Revolving Credit Lender will then be made available to
the relevant Borrower at the funding office for such Borrower and in like funds
as received by the Agent.
2.4 Termination or Reduction/Increases of Revolving Credit
Commitments. (a) The Company or any Foreign Subsidiary Borrower may permanently
reduce the Euro Revolving Credit Commitments, in whole or in part, ratably among
the Euro Revolving Credit Lenders in integral multiples of EUR5,000,000 and the
Company or any Domestic Subsidiary Borrower may permanently reduce the U.S.
Revolving Credit Commitments, in whole or in part, ratably among the U.S.
Revolving Credit Lenders in integral multiples of $10,000,000, in each case upon
at least three Business Days' irrevocable written notice to the Agent, and which
notice shall specify the amount of any such reduction, provided, however, that
the Aggregate Euro Revolving Credit Commitments may not be reduced below the
Aggregate Euro Revolving Credit Outstandings of all Lenders and the Aggregate
U.S. Revolving Credit Commitments may not be reduced below the Aggregate U.S.
Revolving Credit Outstandings of all Lenders. In addition, all accrued facility
fees shall be payable on the effective date of any termination of the Revolving
Credit Commitments. Simultaneously with the closing of any Permitted
Securitization Transaction facility, the Aggregate U.S. Revolving Credit
Commitments shall be automatically reduced, ratably among the U.S. Revolving
Credit Commitments, by the amount of any such Permitted Securitization
Transaction facility which, when aggregated with all other Permitted
Securitization Transaction facilities, exceeds $200,000,000.
(b) Subject to the conditions set forth below, the Company may, upon
at least ten (10) days (or such other shorter or longer period of time agreed to
between the Agent and the Company) prior written notice to the Agent and the
Lenders, increase the Aggregate Commitments (by increasing the Aggregate U.S.
Revolving Credit Commitments, the Aggregate Euro Revolving Credit Commitments or
a combination thereof) from time to time, either by designating one or more
lender(s) not theretofore Lender(s) to become Lender(s) (such designation to be
effective only with the prior written consent (such consent not to be
unreasonably withheld or delayed) of the Agent) and/or by agreeing with one or
more existing Lender(s) that such Lender's or Lenders' U.S. Revolving Credit
Commitment, Euro Revolving Credit Commitment or a combination thereof shall be
increased (thus increasing the Aggregate Commitments); provided that:
(i) no Default or Unmatured Default shall have occurred and be
continuing hereunder as of the effective date of such increase;
(ii) the representations and warranties contained in Article V are
true and correct as on and as of the effective date with the same effect
as if made on and as of such 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 be true and correct on
and as of such earlier date;
23
(iii) the amount of each such increase in the Aggregate Commitments
shall not be less than $10,000,000, and the aggregate amount of all such
increases shall not exceed the Dollar Equivalent Amount of $150,000,000
(determined as of the date each such increase is effective);
(iv) each such lender not theretofore a Lender becoming a Lender and
each existing Lender that has agreed to increase its U.S. Revolving Credit
Commitment, Euro Revolving Credit Commitment or a combination thereof
shall execute and deliver to the Agent a Lender Addition and
Acknowledgement Agreement and acknowledged and agreed to by the Agent and
each Borrower;
(v) no existing Lender shall be obligated in any way to increase any
of its Commitments, and the failure of any Lender to provide a written
response to the Agent within 15 Business Days of any request for an
increase to any of its Commitments shall be deemed a rejection of such
request;
(vi) the Agent shall consent (such consent not to be unreasonably
withheld or delayed) to such increase; and
(vii) the Company and the other Borrowers shall have complied with
such other conditions in connection with such increase as may be required
by the Agent, including without limitation delivering such resolutions,
opinions and other documents reasonably required by the Agent.
Upon the execution and delivery of a Lender Addition and Acknowledgement
Agreement, from and after the effective date specified in such Lender Addition
and Acknowledgement Agreement, such existing Lender shall have Commitments as
therein set forth or such other Lender shall become a Lender with Commitments as
therein set forth and all the rights and obligations of a Lender with such
Commitments hereunder. Upon its receipt of a Lender Addition and Acknowledgement
Agreement together with any Note or Notes, if requested, the Agent shall, if
such Lender Addition and Acknowledgement Agreement has been completed and the
other conditions described in this Section 2.4(b) have been satisfied: (A)
accept such Lender Addition and Acknowledgement Agreement; (B) record the
information contained therein in its records; and (C) give prompt notice thereof
to the Lenders and the Borrowers and deliver to the Lenders and the Borrowers a
new Schedule 1.1(a) reflecting the new Commitments.
2.5 Facility and Agent Fees. (a) Each Borrower agrees to pay to the Agent
for the account of each Lender a facility fee at the rate per annum set forth in
the Pricing Schedule on Exhibit A attached hereto, on the average daily amount
of each Revolving Credit Commitment of such Lender to such Borrower, whether
used or unused, from and including the Effective Date to but excluding the
Facility Termination Date, payable on each Payment Date hereafter and on the
Facility Termination Date. The facility fee payable in respect to each Revolving
Credit Commitment shall be payable in the currency in which such Revolving
Credit Commitment is denominated.
(b) The Company agrees to pay to the Agent for its own account, such
other fees as agreed to in writing between the Company and the Agent.
2.6 Optional and Mandatory Principal Payments on All Loans.
24
2.6.1 Each Borrower may at any time and from time to time prepay Floating
Rate Loans, in whole or in part, without penalty or premium, upon at least one
Business Day's irrevocable notice to the Agent, specifying the date and amount
of prepayment. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial prepayment of
Floating Rate Loans shall be in a minimum aggregate amount of $1,000,000 or any
integral multiple of $1,000,000 in excess thereof.
2.6.2 Each Borrower may at any time and from time to time prepay, without
premium or penalty (but together with payment of any amount payable pursuant to
Section 3.4), its Eurodollar Loans and its Multicurrency Loans in whole or in
part, upon at least three Business Days' irrevocable notice to the Agent
specifying the date and amount of prepayment. Partial payments of Eurodollar
Loans shall be in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof. Partial prepayments of Multicurrency
Loans shall be in an aggregate principal amount in the relevant Available
Foreign Currency of 5,000,000 units or any integral multiple of 1,000,000 units
in excess thereof, or such lesser principal amount as may equal the outstanding
Multicurrency Loans or such lesser amount as may be agreed to by the Agent.
2.6.3 (i) If the Aggregate Euro Revolving Credit Outstandings exceed the
Aggregate Euro Revolving Credit Commitments at any time the Company and the
Foreign Subsidiary Borrowers shall promptly prepay the Aggregate Euro Revolving
Credit Outstandings or cash collateralize Facility Letters of Credit in the
amount of such excess and (ii) if the Aggregate U.S. Revolving Credit
Outstandings exceed the Aggregate U.S. Revolving Credit Commitments at any time
the Company shall promptly prepay the Aggregate U.S. Revolving Credit
Outstandings or cash collateralize Facility Letters of Credit in the amount of
such excess.
2.6.4 Each prepayment pursuant to this Section 2.6 and each conversion
(other than a conversion of a Floating Rate Loan to a Fixed Rate Loan) pursuant
to Section 2.7 shall be accompanied by accrued and unpaid interest on the amount
prepaid to the date of prepayment and any amounts payable under Section 3.4 in
connection with such payment.
2.6.5 Prepayments pursuant to this Section 2.6 shall be applied as
follows: (a) in the case of prepayments made by the Company or a Domestic
Subsidiary Borrower, first to prepay Floating Rate Loans and second to prepay
Eurodollar Loans then outstanding in such order as the Company or such Borrower
may direct and (b) in the case of prepayments made by a Borrower of
Multicurrency Loans, to prepay Multicurrency Loans made to such Borrower in such
order as the Company or such Borrower may direct, provided that all prepayments
on any Loans to a Borrower shall be applied pro rata to the Loans owing by such
Borrower.
2.6.6 All amounts prepaid may be reborrowed and successively repaid and
reborrowed, subject to the other terms and conditions in this Agreement.
2.7. Conversion and Continuation of Outstanding Advances.
2.7.1 Advances. Floating Rate Advances shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are converted into
Eurodollar Advances. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at which
time such Eurodollar Advance shall be automatically converted into a Floating
Rate Advance unless the Company shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or
another Interest Period. Subject to the terms hereof, the Company may elect from
time to time to convert
25
all or any part of a Revolving Credit Advance of any Type to the Company or any
Domestic Subsidiary Borrower into any other Type or Types of Advance; provided
that any conversion of any Eurodollar Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto. The Company shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of an Advance or continuation of a Eurodollar Advance not later than 11:00 a.m.
(Chicago time) at least one Business Day, in the case of a conversion into a
Floating Rate Advance, or three Business Days, in the case of a conversion into
or continuation of a Eurodollar Advance, prior to the date of the requested
conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of such conversion
or continuation,
(b) the aggregate amount and Type of the Revolving Credit Advance which is
to be converted or continued, and
(c) the amounts and Type(s) of Revolving Credit Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Interest Period
applicable thereto.
2.7.2 Multicurrency Advances. Any Multicurrency Advances may be continued
as such upon the expiration of the then current Interest Period with respect
thereto by the relevant Borrower giving the Agent irrevocable notice not later
than 11:00 a.m. (London time) at least three Business Days prior to the date of
the requested continuation, specifying the duration of the Interest Period
applicable thereto, provided, that if the relevant Borrower shall fail to give
such notice, such Multicurrency Advance shall be automatically continued for an
Interest Period of one month provided that such continuation would not extend
the Interest Period beyond the Facility Termination Date.
2.8 Interest Rates, Interest Payment Dates; Interest and Fee Basis. (a)
Each Floating Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Loan is made or is
converted from a Fixed Rate Loan into a Floating Rate Loan pursuant to Section
2.7 to but excluding the date it becomes due or is converted into a Fixed Rate
Loan pursuant to Section 2.7 hereof, at a rate per annum equal to the Floating
Rate for such day. Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period. Each Multicurrency Loan to
the Company or any Foreign Subsidiary Borrower (other than a Swing Loan) shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the applicable Eurocurrency Rate determined for such
Interest Period or at such other interest rate as agreed to by the Company or
such Foreign Subsidiary Borrower, as the case may be, and all Euro Lenders with
a Commitment to the Company or such Foreign Subsidiary Borrower.
(b) Interest accrued on each Floating Rate Advance shall be payable on
each Payment Date, commencing with the first such date to occur after the
Effective Date and at maturity. Interest accrued on each Fixed Rate Advance
shall be payable on the last day of its applicable Interest Period, on any date
on which the Fixed Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate 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.
(c) Interest shall be payable for the day an Advance is made but not for
the day of any payment on the amount paid if payment is received prior to 1:00
p.m. (local time) at the place of payment. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
except as otherwise provided in the definition of Interest Period, such payment
shall
26
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.
(d) All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period such interest or fee is payable over a year comprised of 360
days or, in the case of Floating Rate Loans, 365/366 days, unless the Agent
determines that it is market practice to calculate such interest or fees on
Multicurrency Advances on a different basis.
(e) Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Fixed Rate 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 as applicable to such Fixed
Rate Advance. No Interest Period may end after the Facility Termination Date.
2.9 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in this Agreement, during the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrowers (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that no Advance may be made as, converted into or
continued (after the expiration of the then current Interest Period) as a Fixed
Rate Advance, provided that, notwithstanding the foregoing, any outstanding
Eurocurrency Advance may be continued for an Interest Period not to exceed one
month after such notice to the Borrowers by the Required Lenders. Upon and
during the continuance of any Default under Section 7.2, the Required Lenders
may, at their option, by notice to the Company (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders as to changes and interest rates)
declare that (i) each Fixed Rate 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 and any
other amount due under this Agreement shall bear interest at a rate per annum
equal to the Floating Rate otherwise applicable to Floating Rate Loans plus 2%
per annum, provided that, upon and during the continuance of any acceleration
for any reason of any of the Obligations, the interest rate set forth in clauses
(i) and (ii) shall be applicable to all Advances without any election or action
on the part of the Agent or any Lender.
2.10 Pro Rata Payment, Method of Payment.
2.10.1 Each borrowing of Loans by the Company or any Domestic Subsidiary
Borrower from the U.S. Lenders shall be made pro rata according to the Pro Rata
Shares of such Lenders in effect on the date of such borrowing. Each payment by
the Company or any Domestic Subsidiary Borrower on account of any facility fee
shall be allocated by the Agent among the Lenders in accordance with their
respective Pro Rata Shares. Any reduction of the Commitments of the U.S. Lenders
shall be allocated by the Agent among the U.S. Lenders pro rata according to the
Pro Rata Shares of the U.S. Lenders with respect thereto. Except as otherwise
provided in this Agreement, each optional prepayment by the Company or any
Domestic Subsidiary Borrower on account of principal or interest on its U.S.
Loans shall be allocated by the Agent pro rata according to the respective
outstanding principal amounts thereof. All payments (including prepayments) to
be made by the Company or any Domestic Subsidiary Borrower hereunder in respect
of amounts denominated in Dollars, whether on account of principal, interest,
fees or otherwise, shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to Article XIV, or at any other
27
Lending Installation of the Agent specified in writing by the Agent to the
Company or the relevant Domestic Subsidiary Borrower, as the case may be, by
1:00 p.m. (Chicago time) on the date when due. 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 its address
specified pursuant to Article XIV or at any Lending Installation specified in a
notice received by the Agent from such Lender.
2.10.2 Each borrowing of Euro Loans by the Company or a Foreign Subsidiary
Borrower in any Available Foreign Currency shall be allocated by the Agent pro
rata according to the Pro Rata Shares of the Euro Lenders with respect to such
Borrower in effect on the date of such Loan. Each payment by the Company or a
Foreign Subsidiary Borrower on account of any facility fee shall be allocated by
the Agent among the Lenders to such Borrower in accordance with their respective
Pro Rata Shares. Any reduction of any of the Euro Commitments shall be allocated
by the Agent pro rata according to the Pro Rata Shares of the Euro Lenders with
respect thereto. Except as provided in Section 2.6, each payment (including each
prepayment) by a Borrower on account of principal of and interest on Euro Loans
shall be allocated by the Agent pro rata according to the respective principal
amounts of the Euro Loans then due and owing by such Borrower to each Euro
Lender that made such Euro Loans. All payments (including prepayments) to be
made by a Borrower on account of Euro Loans, whether on account of principal,
interest, fees or otherwise, shall be made without setoff, deduction, or
counterclaim in the currency of such Euro Loans (in same day or other funds
customarily used in the settlement of obligations in such currency) to the Agent
for the account of the Euro Lenders that made such Loans, at the payment office
for such Euro Loans specified from time to time by the Agent by notice to the
Borrowers prior to 1:00 p.m. local time at such payment office on the due date
thereof. The Agent shall distribute such payment to the Euro Lenders entitled to
receive the same promptly upon receipt in like funds as received. In the case of
any payment of facility fees by Foreign Subsidiary Borrowers under Section 2.5
and any prepayments required of Foreign Subsidiary Borrowers under Section
2.6.3, the Company shall designate which Foreign Subsidiary Borrowers shall pay
such amounts and, absent such determination or if any Default has occurred and
is continuing, the Agent shall determine which Foreign Subsidiary Borrower or
Foreign Subsidiary Borrowers shall make such payments, provided that it is
acknowledged that each Foreign Subsidiary Borrower is liable, without
duplication, for the full amount of facility fees payable under Section 2.5 and
is obligated to make any required prepayments under Section 2.6.3 to the extent
such Foreign Subsidiary Borrower has any Aggregate Euro Revolving Credit
Outstandings.
2.11 Telephonic Notices. Each Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any Person or
Persons the Agent or any Lender reasonably and in good faith believes to be an
Authorized Officer. Each Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.12 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Agent will notify each Lender of
the contents of each Revolving Credit Commitment reduction notice, Multicurrency
Commitment reduction notice, Borrowing notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The Agent will notify each Lender
of the interest rate applicable to each Fixed Rate Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
28
2.13 Lending Installations. Each Lender may, except as otherwise provided
in Section 3.6, make and book its Loans at any Lending Installation(s) selected
by such Lender and may change its Lending Installation(s) from time to time. All
terms of this Agreement shall apply to any such Lending Installation(s) and the
Notes, if any, shall be deemed held by each Lender for the benefit of such
Lending Installation(s). Each Lender may, by written or telex notice to the
Agent and the applicable Borrower, designate one or more Lending Installations
which are to make and book Loans and for whose account Loan payments are to be
made.
2.14 Non-Receipt of Funds by the Agent. Unless a Borrower or 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 (a) in the case of a Lender, the proceeds of a
Loan or (b) in the case of a 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
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 (i) in the case of payment by a Lender, the Federal Funds Effective
Rate for the first five days and the interest rate applicable to the relevant
Loan for each day thereafter or (ii) in the case of payment by a Borrower, the
interest rate applicable to the relevant Loan.
2.15 Facility Letters of Credit.
2.15.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrowers herein set forth, the Issuers hereby agree to issue for the account of
a Borrower through such of the Issuer's Lending Installations or Affiliates as
the Issuer may determine, one or more Facility Letters of Credit in accordance
with this Section 2.15, from time to time during the period, commencing on the
Effective Date and ending five Business Days prior to the Facility Termination
Date.
2.15.2 Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2, the obligation
of an Issuer to issue any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under Facility
Letters of Credit issued by the Issuers, after giving effect to the Facility
Letter of Credit requested hereunder, shall not exceed any limit imposed by law
or regulation upon the Issuer;
(b) the requested Facility Letter of Credit shall not have an expiration
date later than the earlier of (i) one year after the date of issuance of such
Facility Letter of Credit and (ii) five Business Days prior to the Facility
Termination Date, provided that any Facility Letter of Credit with a one-year
tenor may provide for the renewal thereof for additional one-year periods (which
shall in no event extend beyond the date referred to in clause (ii) above);
(c) after giving effect to the Facility Letter of Credit requested
hereunder, the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuers, shall not exceed (i)
$50,000,000 in the case of Facility Letters of Credit for the account of the
Company and Domestic Subsidiary Borrowers and (ii) EUR25,000,000 in the case of
Facility Letters of Credit for the account of the Company (if denominated in an
Agreed Currency other than Dollars in the case of the
29
Company) and Foreign Subsidiary Borrowers, and no prepayment would be required
under this Agreement and no provision of this Agreement would be breached;
(d) the applicable Borrower shall have delivered to the applicable Issuer
at such times and in such manner as such Issuer may reasonably prescribe such
documents and materials as may be required pursuant to the terms of the proposed
Letter of Credit and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or decree of any Court,
arbitrator or governmental authority shall purport by its terms to enjoin or
restrain such Issuer from issuing the Facility Letter of Credit and no law, rule
or regulation applicable to such Issuer and no request or directive (whether or
not having the force of law) from any governmental authority with jurisdiction
over such Issuer shall prohibit or request that such Issuer refrain from the
issuance of Letters of Credit generally or the issuance of that Facility Letter
of Credit.
2.15.3 Procedure for Issuance of Facility Letters of Credit. (a) The
applicable Borrower shall give one of the Issuers and the Agent three Business
Days' prior written notice of any requested issuance of a Facility Letter of
Credit under this Agreement (except that, in lieu of such written notice, a
Borrower may give an Issuer (i) notice of such request by tested telex or other
tested arrangement satisfactory to such Issuer or (ii) telephonic notice of such
request if confirmed in writing by delivery to such Issuer (A) immediately (x)
of a telecopy of the written notice required hereunder which has been signed by
an Authorized Officer of such Borrower or (y) of a telex containing all
information required to be contained in such written notice and (B) promptly
(but in no event later than the requested time of issuance) of a copy of the
written notice required hereunder containing the original signature of an
Authorized Officer of such Borrower); such notice shall be irrevocable and shall
specify the stated amount and Available Foreign Currency or U.S. Dollars of the
Facility Letter of Credit requested (which requested currency shall be limited
to the currency in which such Borrower may obtain Loans under this Agreement),
the effective date (which day shall be a Business Day) of issuance of such
requested Facility Letter of Credit, the date on which such requested Facility
Letter of Credit is to expire (which date shall be a Business Day and shall in
no event be later than the fifth day prior to the Facility Termination Date),
the purpose for which such Facility Letter of Credit is to be issued, and the
Person for whose benefit the requested Facility Letter of Credit is to be
issued. The Agent shall give notice to each applicable Revolving Credit Lender
of the issuance of each Facility Letter of Credit reasonably promptly after such
Facility Letter of Credit is issued. At the time such request is made, the
requesting Borrower shall also provide the applicable Issuer with all
information necessary for the issuance of the Facility Letter of Credit it is
requesting. Such notice, to be effective, must be received by such Issuer not
later than 2:00 p.m. (local time) or the time agreed upon by such Issuer and
such Borrower on the last Business Day on which notice can be given under this
Section 2.15.3.
(b) Subject to the terms and conditions of this Section 2.15.3 and
provided that the applicable conditions set forth in Sections 4.1 and 4.2 hereof
have been satisfied, the Issuer shall, on the requested date, issue a Facility
Letter of Credit on behalf of the applicable Borrower in accordance with such
Issuer's usual and customary business practices.
(c) The Issuers shall not extend or amend any Facility Letter of Credit
unless the requirements of this Section 2.15 are met as though a new Facility
Letter of Credit was being requested and issued.
2.15.4 Reimbursement Obligations. (a) Each Borrower agrees to pay to the
Issuer the amount of all Reimbursement Obligations, interest and other amounts
payable to the Issuer under or in
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connection with any Facility Letter of Credit issued on behalf of such Borrower
immediately when due, irrespective of any claim, set-off, defense or other right
that the Borrower, the Company or any Subsidiary may have at any time against
the Issuer or any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right that any
Borrower or any Subsidiary may have at any time against a beneficiary named in a
Facility Letter of Credit or any transferee of any Facility Letter of Credit (or
any Person for whom any such transferee may be acting), any Issuer, any Lender,
or any other Person, whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between any Borrower or any
Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the
Facility Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw
under a Facility Letter of Credit. Such Borrower shall reimburse the applicable
Issuer for drawings under a Facility Letter of Credit issued by it on behalf of
such Borrower promptly after the payment by the Issuer. Any Reimbursement
Obligation with respect to any Facility Letter of Credit shall bear interest
from the date of the relevant drawings under the pertinent Facility Letter of
Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the
interest rate for Floating Rate Loans or (ii) in the case of such Obligations
denominated in an Available Foreign Currency, at the correlative floating rate
of interest customarily applicable to similar extensions of credit to corporate
borrowers denominated in such currency in the country of issue of such currency,
as reasonably determined by the Agent. In addition to its other rights, the
Issuers shall also have all rights for indemnification and reimbursement as each
Lender is entitled under this Agreement.
2.15.5 Participation. (a) Immediately upon issuance by an Issuer of any
Facility Letter of Credit in accordance with the procedures set forth in Section
2.15.3, (i) with respect to each U.S. Facility Letter of Credit, each Revolving
Credit Lender shall be deemed to have irrevocably and unconditionally purchased
and received from such Issuer, without recourse or warranty, an undivided
interest and participation equal to its Pro Rata Share of such U.S. Facility
Letter of Credit (including, without limitation, all obligations of the
applicable Borrower with respect thereto) and any security therefor or guaranty
pertaining thereto and (ii) with respect to each Multicurrency Facility Letter
of Credit, each Euro Lender with respect to the Borrower for the account of
which such Multicurrency Facility Letter of Credit is issued shall be deemed to
have irrevocably and unconditionally purchased and received from such Issuer,
without recourse or warranty, an undivided interest and participation equal to
its Pro Rata Share in such Multicurrency Facility Letter of Credit (including,
without limitation, all obligations of the applicable Borrower with respect
thereto), any security therefor or guaranty pertaining thereto; provided, that a
Letter of Credit issued by an Issuer shall not be deemed to be a Facility Letter
of Credit for
31
purposes of this Section 2.15.5 if such Issuer shall have received written
notice from any Revolving Credit Lender on or before one Business Day prior to
the date of its issuance of such Letter of Credit that one or more of the
conditions contained in Sections 4.1 or 4.2 are not then satisfied, and, in the
event an Issuer receives such a notice, it shall have no further obligation to
issue any Letter of Credit until such notice is withdrawn by that Revolving
Credit Lender or such condition has been effectively waived in accordance with
the provisions of this Agreement.
(b) In the event that an Issuer makes any payment under any Facility
Letter of Credit and the applicable Borrower shall not have repaid such amount
to the Issuer pursuant to Section 2.15.4, the Issuer shall promptly notify the
Agent and each Revolving Credit Lender participating in such Letter of Credit of
such failure, and each Revolving Credit Lender participating in such Letter of
Credit shall promptly and unconditionally pay to the Agent for the account of
such Issuer the amount of such Lender's Pro Rata Share of the unreimbursed
amount of any such payment in such currency. If any Revolving Credit Lender
participating in such Facility Letter of Credit fails to make available to such
Issuer any amounts due to such Issuer pursuant to this Section 2.15.5(b), such
Issuer shall be entitled to recover such amount, together with interest thereon
(i) in the case of amounts denominated in U.S. Dollars, at the Federal Funds
Effective Rate, for the first three Business Days after such Lender receives
such notice and thereafter, at the Floating Rate, or (ii) in the case of amounts
denominated in an Available Foreign Currency, at a local cost of funds rate for
obligations in such currency as determined by the Agent for the first three
Business Days after such Lender receives such notice, and thereafter at the
floating rate of interest correlative to the Floating Rate customarily
applicable to similar extensions of credit to corporate borrowers denominated in
such currency in the country of issue of such currency, as determined by the
Agent, in either case payable (i) on demand, (ii) by setoff against any payments
made to such Issuer for the account of such Lender or (iii) by payment to such
Issuer by the Agent of amounts otherwise payable to such Lender under this
Agreement. The failure of any Revolving Credit Lender to make available to the
Agent its Pro Rata Share of the unreimbursed amount of any such payment shall
not relieve any other Revolving Credit Lender of its obligation hereunder to
make available to the Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made, but no Revolving Credit Lender
shall be responsible for the failure of any other Revolving Credit Lender to
make available to the Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account of a Reimbursement
Obligation, including any interest thereon, it shall promptly pay to each
Revolving Credit Lender that has funded its participating interest therein, in
like funds as received an amount equal to such Lender's Pro Rata Share thereof.
(d) The obligations of a Revolving Credit Lender to make payments to the
Agent with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim, set-off,
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
(e) In the event any payment by a Borrower received by the Agent with
respect to a Facility Letter of Credit and distributed by the Agent to the
Lenders on account of their participations is thereafter set aside, avoided or
recovered from the Agent in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Revolving Credit Lender that
received such distribution shall, upon demand by the Agent, contribute such
Lender's Pro Rata Share of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Agent upon the amount
required to be repaid by it.
32
2.15.6 Compensation for Facility Letters of Credit. The Issuer of a
Facility Letter of Credit shall have the right to receive from the Borrower that
requested issuance of such Facility Letter of Credit, solely for the account of
such Issuer, a fronting fee in an amount equal to 0.10% per annum as well as the
Issuer's reasonable and customary costs of issuing and servicing the Facility
Letters of Credit. In addition, such Borrower shall pay to the Agent for the
account of each Revolving Credit Lender participating in such Facility Letter of
Credit a non-refundable fee at a per annum rate in the amount shown on the
Pricing Schedule on Exhibit A applied to the face amount of the Facility Letter
of Credit, payable quarterly in arrears for the account of all Revolving Credit
Lenders participating in such Facility Letter of Credit (including the Issuers)
ratably from the date such Facility Letter of Credit is issued until its stated
expiry date.
2.15.7 Letter of Credit Collateral Account. Each Borrower hereby agrees
that it will, until the final expiration date of any Facility Letter of Credit
and thereafter as long as any amount is payable to the Lenders in respect of any
Facility Letter of Credit, maintain a special collateral account (the "Letter of
Credit Collateral Account") at the Agent's office at the address specified
pursuant to Article XIV, in the name of such Borrower but under the sole
dominion and control of the Agent, for the benefit of the Lenders and in which
such Borrower shall have no interest other than as set forth in Section 8.1. The
Agent will invest any funds on deposit from time to time in the Letter of Credit
Collateral Account in certificates of deposit of the Agent having a maturity not
exceeding 30 days. Nothing in this Section 2.15.7 shall either obligate the
Agent to require any Borrower to deposit any funds in the Letter of Credit
Collateral Account or limit the right of the Agent to release any funds held in
the Letter of Credit Collateral Account other than as required by Section 8.1,
and the Borrower's obligations to deposit funds in the Letter of Credit
Collateral Account are limited to the circumstances required by Section 8.1.
2.15.8 Nature of Obligations. (a) As among the Borrowers, the Issuers and
the Revolving Credit Lenders, each Borrower assumes all risks of the acts and
omissions of, or misuse of the Facility Letters of Credit by, the respective
beneficiaries of the Facility Letters of Credit requested by it. In furtherance
and not in limitation of the foregoing, the Issuers and the Revolving Credit
Lenders shall not be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Facility Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
a Facility Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of a Facility Letter of Credit to
comply fully with conditions required in order to draw upon such Facility Letter
of Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v)
errors in interpretation of technical terms; (vi) misapplication by the
beneficiary of a Facility Letter of Credit of the proceeds of any drawing under
such Facility Letter of Credit; or (vii) any consequences arising from causes
beyond the control of the Issuers or the Revolving Credit Lenders. In addition
to amounts payable as elsewhere provided in this Section 2.15, such Borrower
hereby agrees to protect, indemnify, pay and save the Agent, each Issuer and
each Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees) arising from the claims of third parties against the Agent or such Issuer
in respect of any Facility Letter of Credit requested by such Borrower.
(b) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuers or
any Revolving Credit Lender under or in connection with the Facility Letters of
Credit or any related certificates, if taken or omitted in good faith,
33
shall not put such Issuer or such Lender under any resulting liability to any
Borrower or relieve any Borrower of any of its obligations hereunder to the
Issuers, the Agent or any Revolving Credit Lender.
(c) Notwithstanding anything to the contrary contained in this Section
2.15.8, a Borrower shall not have any obligation to indemnify the Agent, any
Issuer or any Lender under this Section 2.15 in respect of any liability
incurred by each arising primarily out of the gross negligence or willful
misconduct of such Agent, Issuer or Lender, as determined by a court of
competent jurisdiction, or out of the wrongful dishonor by such Issuer of a
proper demand for payment made under the Facility Letters of Credit issued by
such Issuer as determined by a court of competent jurisdiction, unless such
dishonor was made at the request of such Borrower in writing, or out of the
wrongful honor by such Issuer of a demand for payment made under the Facility
Letters of Credit issued by such Issuer which demand for payment does not comply
with the conditions required in order to draw upon such Facility Letter of
Credit as determined by a court of competent jurisdiction, unless such dishonor
was made at the request of such Borrower in writing.
Section 2.16. Swing Loans.
(a) Making of Swing Loans. The Swing Lender may elect in its sole
discretion to make Swing Loans to any Borrower solely for the Swing Lender's own
account, from time to time prior to the Facility Termination Date up to an
aggregate principal amount at any one time outstanding not to exceed (i) in the
case of Swing Loans to any Borrower under the U.S. Revolving Credit Commitment,
the lesser of (A) $30,000,000 or the Dollar Equivalent Amount thereof and (B)
the unused amount of the Aggregate U.S. Revolving Credit Commitments ("U.S.
Swing Loans"), and (ii) in the case of Swing Loans to any Borrower under the
Euro Revolving Credit Commitment, the lesser of (A) EUR15,000,000 or the
Equivalent Amount thereof and (B) the unused amount of the Aggregate Euro
Revolving Credit Commitments ("Euro Swing Loans"). The Swing Lender may make
Swing Loans (subject to the conditions precedent set forth in Article IV),
provided that the Swing Lender has received a request in writing or via
telephone from an Authorized Officer of such Borrower for funding of a Swing
Loan no later than such time required by the Swing Lender, on the Business Day
on which such Swing Loan is requested to be made. The Swing Lender shall not
make any Swing Loan in the period commencing one Business Day after the Swing
Lender becomes aware that one or more of the conditions precedent contained in
Section 4.2 are not satisfied and ending upon the satisfaction or waiver of such
condition(s). Swing Loans may be made by the Swing Lender in any freely traded
currency requested by such Borrower and agreed to by the Swing Lender. The Swing
Lender agrees with the Borrowers that all Swing Loans denominated in Australian
Dollars will be funded out of the Swing Lender's Lending Installation in
Australia unless the Swing Lender provides prior notice to the Borrowers, in
which case the Borrower requesting such Loan may withdraw its request for such
Swing Loan. Each outstanding Swing Loan shall be payable on the Business Day
following demand therefor, with interest at such rate as the Swing Lender and
such Borrower shall agree, and shall be subject to all the terms and conditions
applicable to Loans, except that all interest thereon shall be payable to the
Swing Lender solely for its own account. Notwithstanding provisions to the
contrary in this Agreement, each U.S. Lender acknowledges and agrees that U.S.
Swing Loans may be made under the U.S. Revolving Credit Commitment to Foreign
Subsidiary Borrowers, each Euro Lender acknowledges and agrees that Euro Swing
Loans may be made under the Euro Revolving Credit Commitment to the Company and
Domestic Subsidiary Borrowers and each Borrower acknowledges and agrees that the
availability under Section 2.1.1 and 2.1.2 may also be blocked by the Agent in
an amount equal to the approximate anticipated Swing Loan usage reasonably
determined by the Agent with the consent of the Company.
(b) Swing Loan Borrowing Requests. Each Borrower agrees to deliver
promptly to the Swing Lender a written confirmation of each telephonic notice
for Swing Loans signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Swing Lender, the
34
records of the Swing Lender shall govern, absent manifest error.
(c) Repayment of Swing Loans. At any time after making a Swing Loan, the
Swing Lender may request the recipient Borrower to, and upon request by the
Swing Lender the recipient Borrower shall, promptly request an Advance from all
U.S. Revolving Credit Lenders, with respect to any U.S. Swing Loan, and all Euro
Revolving Credit Lenders, with respect to any Euro Swing Loan, and apply the
proceeds of such Advance to the repayment of such Swing Loan not later than the
Business Day following the Swing Lender's request. Notwithstanding the
foregoing, upon the earlier to occur of (a) three Business Days after demand is
made by the Swing Lender, and (b) the Facility Termination Date, the Borrower
agrees that each U.S. Swing Loan outstanding in any currency other than Dollars
shall be immediately and automatically converted to and redenominated in Dollars
equal to the Dollar Equivalent Amount of each such U.S. Swing Loan determined as
of the date of such conversion and each Euro Swing Loan outstanding in any
currency other than Euros shall be immediately and automatically converted to
and redenominated in Euros equal to the Euro Equivalent Amount of each such Euro
Swing Loan determined as of the date of such conversion, and each U.S. Revolving
Credit Lender, in the case of any U.S. Swing Loan, and each Euro Revolving
Credit Lender, in the case of any Euro Swing Loan (other than, in each case, the
Swing Lender), shall irrevocably and unconditionally purchase from the Swing
Lender, without recourse or warranty, an undivided interest and participation in
such Swing Loan in an amount equal to such Lender's Pro Rata Share of the Swing
Loan and promptly pay such amount to such Swing Lender in immediately available
funds (or, in the case of participations in Swing Loans denominated in an
Available Foreign Currency, same day funds). Such payment shall be made by the
other Lenders whether or not a Default is then continuing or any other condition
precedent set forth in Section 4.2 is then met and whether or not such Borrower
has then requested an Advance in such amount. If any Lender fails to make
available to such requesting Swing Lender any amounts due to the Swing Lender
from such Lender pursuant to this Section, the Swing Lender shall be entitled to
recover such amount, together with interest thereon at the Federal Funds
Effective Rate or such other local cost of funds rate determined by the Swing
Lender with respect to any Swing Loan denominated in any Available Foreign
Currency for the first three Business Days after such Lender receives notice of
such required purchase and thereafter, at the rate applicable to such Loan,
payable (i) on demand, (ii) by setoff against any payments made to the Swing
Lender for the account of such Lender or (iii) by payment to the Swing Lender by
the Agent of amounts otherwise payable to such Lender under this Agreement. The
failure of any Lender to make available to such Swing Lender its Pro Rata Share
of any unpaid Swing Loan shall not relieve any other Lender of its obligation
hereunder to make available to the Swing Lender its Pro Rata Share of any unpaid
Swing Loan on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the Swing
Lender its Pro Rata Share of any unpaid Swing Loan.
2.17 Application of Payments with Respect to Defaulting Lenders. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) First, if applicable to any payments due to an Issuer pursuant to
Section 2.15.5 or the Agent under Section 2.16; and
(ii) Second, to Loans required to be made by such Defaulting Lender on any
Borrowing Date to the extent such Defaulting Lender fails to make such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments and the
payment and performance of all of the Obligations (other than those owing to a
Defaulting Lender), any funds then
35
held in escrow by the Agent pursuant to the preceding sentence shall be
distributed to each Defaulting Lender, pro rata in proportion to amounts that
would be due to each Defaulting Lender but for the fact that it is a Defaulting
Lender.
2.18 Guaranties. The Company shall execute and deliver, or cause to be
executed and delivered, to the Lenders and the Agent from time to time
Guaranties of certain present and future Domestic Subsidiaries such that, at all
times, all Domestic Subsidiaries which are not Guarantors do not, if considered
in the aggregate as a single Subsidiary, constitute a Significant Subsidiary.
For purposes of making the determination required under the preceding sentence,
it is acknowledged that, as provided in Rule 1-02 of Regulation S-X as currently
in effect promulgated by the SEC, the investment in and advances to, and share
of total assets and income of, any Domestic Subsidiary shall be determined based
on the investment in and advances to, and share of total assets and income of,
such Domestic Subsidiary and its Subsidiaries on a consolidated basis. In
connection with the delivery of any such Guaranties, Company shall provide such
other documentation to the Agent, including, without limitation, one or more
opinions of counsel satisfactory to the Agent, corporate documents and
resolutions, which in the reasonable opinion of the Agent is necessary or
advisable in connection therewith. Notwithstanding anything herein to the
contrary, Securitization Entities shall not be required to be Guarantors.
2.19 Amendment and Restatement. This Agreement amends and restates the
Existing Loan Agreement as of the Effective Date. All Obligations (as defined in
the Existing Loan Agreement) outstanding under the Existing Loan Agreement shall
constitute Obligations under this Agreement. The Obligations and other
liabilities pursuant hereto are issued in exchange and replacement for the
Obligations (as defined in the Existing Loan Agreement) and other liabilities
under the Existing Loan Agreement, shall not be a novation or satisfaction
thereof and shall be entitled to the same guaranties and collateral with the
same priority. The Lenders acknowledge and agree that such transfer of rights
and interest under the Loan Documents shall take place among the Lenders as of
the Effective Date to give effect to Commitments set forth herein. The Lenders
further acknowledge and agree that such transfer of rights and interest under
the Loan Documents shall take place among the Lenders as of the Second Amendment
Effective Date to give effect to the Commitments as modified pursuant to the
Second Amendment.
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1 Yield Protection. If after the date hereof 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 or modification thereof, or any
interpretation thereof, or the compliance of any Lender therewith,
(a) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from any Borrower or changes the basis of taxation of payments
to any Lender in respect of its Loans or other amounts due it
hereunder (excluding income taxes and franchise taxes (imposed
in lieu of income taxes) imposed on the Agent or any Lender as
a result of a present or former connection between the Agent
or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or
taxing authority thereof or therein, other than any such
connection arising solely from the Agent or such Lender having
executed, delivered or
36
performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document), 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 Fixed Rate Advances), 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 loans or reduces any amount
receivable by any Lender or any applicable Lending
Installation in connection with loans, or requires any Lender
or any applicable Lending Installation to make any payment
calculated by reference to the amount of loans held or
interest received by it, by an amount deemed material by such
Lender,
then, within 15 days of demand by such Lender, the affected Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received that such Lender reasonably determines is attributable to
making, funding and maintaining its Loans or its Commitments.
3.2 Changes in Capital Adequacy Regulations. If a Lender reasonably
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then, within 15
days of demand by such Lender, the Company shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital that such Lender reasonably determines is attributable
to this Agreement, its Loans or its obligation to make Loans hereunder (after
taking into account such Lender's policies as to capital adequacy). "Change"
means (a) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (b) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement that affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender reasonably determines
that maintenance of its Eurodollar Loans or Multicurrency 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 U.S.
Lenders with respect to Eurodollar Loans or the Required Euro Revolving Credit
Lenders with respect to any Multicurrency Loan determine that (i) deposits of a
currency, type and maturity appropriate to match fund Eurodollar or Eurocurrency
Loans are not available or (ii) the interest rate applicable to a Eurocurrency
Loan or Eurodollar Loan does not accurately reflect the cost of making or
maintaining such Loans, then the Agent shall suspend the availability of the
affected Type of Loans and require any Loans of the affected Type to be repaid
at the end of the Interest Period for the affected Loan. Notwithstanding the
satisfaction of all conditions referred to in Article II and Article IV with
respect to
37
any Advance in any Agreed Currency other than Dollars, if there shall occur on
or prior to the date of such 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 Advance to be denominated in the Agreed Currency specified by a Borrower,
then the Agent shall forthwith give notice thereof to such Borrower and the
Lenders, and such Loans shall not be made.
3.4 Funding Indemnification. If any payment of a Fixed Rate Advance occurs
on a date that is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Fixed Rate Advance is not
made on the date specified by a Borrower for any reason other than default by
the Lenders, such Borrower will indemnify each Lender for any reasonable loss or
reasonable cost incurred by it resulting therefrom, including, without
limitation, any reasonable loss or reasonable cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance, but excluding the
loss of the Applicable Margin.
3.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans and Multicurrency Rate Loans to reduce any
liability of a Borrower to such Lender under Sections 3.1 and 3.2 or to avoid
the unavailability of a Type of Advance under Section 3.3, so long as such
designation is not disadvantageous to such Lender in any material respect. Each
Lender shall deliver a written statement of such Lender to the applicable
Borrower (with a copy to the Agent) as to the amount due, if any, under Section
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall state that
amounts determined in accordance with such procedures are being charged by such
Lender to other borrowers with credit facilities similar to this Agreement and
credit characteristics comparable to the Company as determined by such Lender
and shall be final, conclusive and binding on the Borrowers in the absence of
manifest error. Determination of amounts payable under such sections in
connection with a Eurodollar Rate Loans and Multicurrency Rate Loans shall be
calculated as though each Lender funded such Loans through the purchase of a
deposit of the type and maturity corresponding to the deposit used as a
reference in determining the interest rate applicable to such 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 applicable Borrower of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.6 shall survive
payment of the Obligations and termination of this Agreement. The Borrowers
shall have no obligation to compensate any Lender with respect to amounts
provided in Sections 3.1, 3.2, 3.4 or 3.6 with respect to any period prior to
the date which is 120 days prior to the date such Lender delivers its written
statement hereunder requesting compensation.
3.6 Taxes.
3.6.1 All payments of principal and interest made by the Borrowers under
this Agreement and any Note, if any, and all Reimbursement Obligations with
respect to Facility Letters of Credit shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding income taxes and franchise
taxes (imposed in lieu of income taxes) imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
38
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Agent, any Issuer or any Lender hereunder or under any Note or Facility
Letter of Credit, the amounts so payable to the Agent, such Issuer or such
Lender shall be increased to the extent necessary to yield to the Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates and in the amounts specified in this
Agreement provided, however, that (i) with respect to any Loan or Facility
Letter of Credit in U.S. Dollars to the Company, the Company shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of Section 3.6.2, (ii) with
respect to any Loan or Facility Letter of Credit in any Available Foreign
Currency, a Borrower shall not be required to increase any such amounts payable
to any Lender if such Lender fails to comply with the requirements of Section
3.6.3 and (iii) with respect to any Multicurrency Loan or any Multicurrency
Facility Letter of Credit, the Foreign Subsidiary Borrower shall not be required
to increase any such amounts payable to any Lender or the Agent to the extent
such Lender could avoid the payment of such amount by changing its Lending
Installation, provided that any such change in any Lending Installation shall
not be required if such Lender cannot change its Lending Installation for any
reason or such Lender has determined that it is disadvantageous to it to do so.
Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower shall send to the Agent for its own account or
for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment thereof. If
a Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, such Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become payable
by the Agent or any Lender as a result of any such failure. The agreements in
this Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
3.6.2 Each U.S. Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(a) at least five Business Days before the date of the initial
payment to be made by the Company under this Agreement to such Lender,
deliver to the Company and the Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Agreement without deduction or withholding of
any United States federal income taxes and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United States backup
withholding tax;
(b) deliver to the Company and the Agent two further copies of any
such form or certification at least five Business Days before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Agent and the Company;
(c) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Agent; and
(d) file amendments to such forms as and when required; and each
Lender (or Transferee) that is incorporated or organized under the laws of
the United States of America or a
39
State thereof shall provide two properly completed and duly executed
copies of Form W-9, or successor applicable form, at the times specified
for delivery of forms under this Section 3.6.2 unless an event (including,
without limitation, any change in treaty, law or regulation) has occurred
after the date such Person becomes a Lender hereunder which renders all
such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender
so advises the Company and the Agent; provided, however, that the Company
may rely upon such forms provided to the Company for all periods prior to
the occurrence of such event. Each Person that shall become a U.S. Lender
or a Participant pursuant to Section 13.2 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this Section, provided
that in the case of such Participant, the obligations of such Participant
pursuant to this Section 3.6.2 shall be determined as if such Participant
were a Lender, except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.6.3 Each Euro Lender that is not incorporated or organized under the
laws of the jurisdiction (a) under the laws of which a Foreign Subsidiary
Borrower is incorporated or organized, or (b) in which such Foreign Subsidiary
Borrower is located, and, in either case, is a Lender to such Foreign Subsidiary
Borrower shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not prejudice
the legal position of such Lender.
3.6.4 Each Lender agrees to use reasonable efforts to avoid or to minimize
any amounts that might otherwise be payable pursuant to this Section 3.6,
provided that such effort shall not impose on any such Lender any additional
costs or legal or regulatory burdens deemed by such Lender in its reasonable
judgment to be material. In the event that any Lender determines that any event
or circumstance that will lead to a claim by it under this Section 3.6 has
occurred or will occur, such Lender will use its best efforts to so notify the
Company in writing, provided that any failure to provide such notice shall in no
way impair the rights of any Lender to demand and receive compensation under
this Section 3.6.
3.7 Substitution of Lender. If (a) the obligation of any Lender to make or
maintain Fixed Rate Loans has been suspended pursuant to Section 3.3, except
when all Lenders' obligations to make or maintain Fixed Rate Loans have been
suspended other than by reason of such Lender's obligation to make or maintain
Fixed Rate Loans being suspended, (b) any Lender has demanded compensation under
Sections 3.1, 3.2 or 3.6 when all Lenders have not done so, (c) any Lender is a
Defaulting Lender or (d) in connection with a request by any Borrower to obtain
the consent of the Lenders to a waiver, amendment or modification of any
provision of this Agreement or any other Loan Document that requires the consent
of all Lenders, any Lender having not more than 10% of the sum of the Aggregate
Revolving Credit Outstandings of all Lenders at such time has declined to agree
to such request when the Required Lenders have agreed to such request, the
Company shall have the right, if no Default then exists, to replace such Lender
(a "Replaced Lender") with one or more other lenders (collectively, the
"Replacement Lender") acceptable to the Agent, provided that (i) at the time of
any replacement pursuant to this Section 3.7, the Replacement Lender shall enter
into one or more Assignments pursuant to which the Replacement Lender shall
acquire the Commitments and outstanding Loans and other obligations of
40
the Replaced Lender and, in connection therewith, shall pay to the Replaced
Lender in respect thereof an amount equal to the sum of (A) the amount of
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Lender, (B) the amount of all accrued, but theretofore unpaid, fees owing to the
Replaced Lender hereunder and (C) the amount that would be payable by the
Borrowers to the Replaced Lender pursuant to Section 3.4, if any, if the
Borrowers prepaid at the time of such replacement all of the Loans of such
Replaced Lender outstanding at such time and (ii) all obligations of the
Borrowers then owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignments, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the appropriate Borrower,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder. The provisions of this Agreement
(including without limitation Sections 3.4 and 10.7) shall continue to govern
the rights and obligations of a Replaced Lender with respect to any Loans made
or any other actions taken by such lender while it was a Lender. Nothing herein
shall release any Defaulting Lender from any obligation it may have to any
Borrower, the Agent, Issuer or any other Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Closing Conditions. On the date hereof, the Borrowers shall furnish,
or shall cause to be furnished, to the Agent, each of the following:
(a) Copies of the articles of incorporation or similar
organizational documents of each Borrower and Guarantor,
together with all amendments thereto, or a certification by an
Authorized Officer that the articles of incorporation or
similar organizational documents delivered in connection with
the Existing Loan Agreement are complete and accurate, and a
certificate of good standing or similar governmental evidence
of corporate existence, certified by the Secretary or an
Assistant Secretary of such Borrower or Guarantor, as the case
may be.
(b) Copies of the by-laws, or a certification by an Authorized
Officer that the by-laws delivered in connection with the
Existing Loan Agreement are complete and accurate, and Board
of Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender) of each
Borrower and Guarantor authorizing the execution of the Loan
Documents, certified by the Secretary or an Assistant
Secretary or other duly authorized representative of such
Borrower or Guarantor, as the case may be.
(c) An incumbency certificate of each Borrower and Guarantor,
which shall identify by name and title and bear the signature
of the officers of such Borrower or such Guarantor authorized
to sign the applicable Loan Documents and to make borrowings
hereunder, or a certification by an Authorized Officer that
the incumbency certificates delivered in connection with the
Existing Loan Agreement are complete and accurate, upon which
certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by such Borrower
or such Guarantor.
41
(d) A Compliance Certificate, signed by any Designated Financial
Officer of each Borrower.
(e) A written opinion of the Borrowers' and Guarantors' counsel,
addressed to the Agent and Lenders, in substantially the form
of Exhibit G hereto.
(f) Written money transfer instructions, as described on Exhibit H
hereto, addressed to the Agent and signed by two Authorized
Officers, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(g) The Guaranty executed by all of the Guarantors.
(h) Payment of all fees owing to the Agent or any Lender by the
Borrowers and the Guarantors as of the Effective Date.
(i) Evidence reasonably satisfactory to the Agent that, since
December 31, 2002, there has been no change in the business,
property, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
(j) Such other agreements and documents, and the satisfaction of
such other conditions, as may be reasonably required by the
Agent, including without limitation a subrogation and
contribution agreement executed by the Borrowers and the
Guarantors and such funding instructions as may be required by
the Agent.
4.2 Each Advance. The Lenders shall not be required to make any Loans nor
shall any Issuer be required to issue any Letter of Credit, unless on the
applicable Borrowing Date, both before and after giving effect on a pro forma
basis to such Loan or Letter of Credit:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date except (i) 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 be true and correct on and as
of such earlier date and (ii) the representations contained in Section 5.5 shall
be limited (as determined by the Agent) with respect to any Loans or Letters of
Credit made after the initial Loans and Letters of Credit hereunder if the
credit facilities hereunder are used for commercial paper backup to the extent
required by the relevant rating agencies with respect to such commercial paper.
(c) All legal matters incident to the making of such Loans or the
issuance of such Facility Letter of Credit shall be satisfactory to the Agent
and its counsel.
(d) If such Loan is an initial Loan to a Subsidiary Borrower, the
Agent shall have received a Foreign Subsidiary Opinion or Domestic Subsidiary
Opinion, as the case may be, in respect of such Subsidiary Borrower and such
other documents reasonably requested by the Agent.
42
Each Borrowing notice with respect to each borrowing by a Borrower
hereunder or each request for an issuance of a Facility Letter of Credit shall
constitute a representation and warranty by the Company and such Borrower that
the conditions contained in Sections 4.2(a), (b) and (c) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Subsidiary Borrowers (insofar as the
representations and warranties set forth below relate to such Subsidiary
Borrower) represents and warrants to the Lenders that:
5.1 Corporate Existence and Standing. Each Borrower and Guarantor is a
corporation, partnership, limited liability company or other organization, duly
organized and validly existing under the laws of its jurisdiction of
organization and has all requisite corporate, partnership, company or similar
authority to conduct its business as presently conducted.
5.2 Authorization and Validity. Each Borrower has the corporate or other
power and authority and legal right to execute and deliver the Loan Documents
and to perform its obligations thereunder. The execution and delivery by each of
the Borrowers of the Loan Documents and the performance of their obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents to which they are a party constitute legal, valid and binding
obligations of the Borrowers enforceable against the Borrowers 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 by general principles of equity.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
the Borrowers of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any of its Subsidiaries or the Company's or any
Subsidiary's constitutive documents or the provisions of any indenture,
instrument or agreement to which the Company 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 the creation or imposition of
any Lien (other than any Lien permitted by Section 6.12) in, of or on the
Property of the Company or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. Other than those that have been obtained, no
order, consent, 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, is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4 Financial Statements. All financial statements of the Company and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present in all material respects the
consolidated financial condition and operations of the Company and its
Subsidiaries.
5.5 Material Adverse Change. Since December 31, 2004 or, after the first
financial statements are delivered under Sections 6.1(i) or (ii), since the date
of the financial statements most recently delivered under Section 6.1(i) or
(ii), there has been no change in the business, Property,
43
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes. The Company and its Subsidiaries have filed all United States
federal tax returns and all other material tax returns that are required to be
filed by any Governmental Authority and have paid all taxes shown as due
pursuant to said returns or pursuant to any assessment received by the Company
or any of its Subsidiaries by any Governmental Authority, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided in accordance with Agreement Accounting Principles and as to which
no Lien (other than as permitted by Section 6.12) exists. No tax liens have been
filed and no claims are being asserted with respect to any such taxes, other
than as permitted by Section 6.12. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set forth on Schedule
5.7 hereto, there is no litigation, arbitration or proceeding pending or, to the
knowledge of any of the Company's executive officers, any governmental
investigation or inquiry pending or any litigation, arbitration, governmental
investigation, proceeding or inquiry threatened against or affecting the Company
or any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect or which seeks to prevent, enjoin or delay the making of the
Loans or Advances. Other than any liability incident to such litigation,
arbitration or proceedings listed on Schedule 5.7, the Company and its
Subsidiaries have no material Contingent Obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8 Subsidiaries. Schedule 5.8 hereto contains an accurate list of all
Subsidiaries of the Company as of April 27, 2005, setting forth their respective
jurisdictions of incorporation or organization and the percentage of their
respective Capital Stock owned by the Company or other Subsidiaries. All of the
issued and outstanding shares of Capital Stock of such Subsidiaries held by the
Company have been duly authorized and issued and are fully paid and
non-assessable.
5.9 ERISA. Each member of the Controlled Group has fulfilled its material
obligations under the minimum funding standards of ERISA and the Code with
respect to each Single Employer Plan. Each member of the Controlled Group is in
material compliance with the applicable provisions of ERISA and the Code with
respect to each Plan except where such non compliance would not have a Material
Adverse Effect. Each Single Employer Plan complies in all material respects with
all applicable requirements of law and regulations, no Reportable Event which
has or may result in any material liability has occurred with respect to any
Single Employer Plan, and no steps have been taken to reorganize or terminate
any Single Employer Plan. No member of the Controlled Group has (i) sought a
waiver of the minimum funding standard under Section 412 of the Code in respect
of any Plan, (ii) failed to make any contribution or payment to any Single
Employer Plan or Multiemployer Plan, or made any amendment to any Plan, which
has resulted or could result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Code or (iii) incurred any material,
actual liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA or a liability that has been satisfied.
5.10 Accuracy of Information. No information, exhibit or report furnished
by the Company or any of its Subsidiaries in writing to the Agent or to any
Lender in connection with the negotiation of the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading in light of
the circumstances in which made, as of the date thereof; provided, however, that
with respect to projected financial
44
information, the Company represents only that such information has been prepared
in good faith based on assumptions believed by the Company to be reasonable.
5.11 Regulations T, U and X. Neither the Company nor any of its
Subsidiaries extends or maintains, in the ordinary course of business, credit
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying Margin Stock, and no part of the proceeds of any Advance will be used
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such Margin Stock or maintaining or extending credit to others for
such purpose in any way that would violate Regulation T, U or X. After applying
the proceeds of each Advance, Margin Stock will not constitute more than 25% of
the value of the assets (either of the Company alone or of the Company and its
Subsidiaries on a consolidated basis) that are subject to any provisions of any
Loan Document that may cause the Advances to be deemed secured, directly or
indirectly, by Margin Stock. The Company and its Subsidiaries are in compliance
with Section 6.2.
5.12 Material Agreements. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party (including any
agreement or instrument evidencing or governing Indebtedness), which default
could reasonably be expected to have a Material Adverse Effect.
5.13 Compliance With Laws; Properties. The Company and its Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, failure to comply with
which could reasonably be expected to have a Material Adverse Effect.
5.14 Plan Assets; Prohibited Transactions. The Company and its
Subsidiaries have not engaged in any non-exempt prohibited transaction within
the meaning of Section 406 of ERISA or Section 4975 of the Code which could
result in any material liability; and neither the execution of this Agreement
nor the making of Loans (assuming the accuracy of the following representations
and warranties which the Lenders hereby make for the benefit of the Borrowers:
(i) that no part of the funds to be used by the Lenders for funding any of the
Loans shall constitute assets of an "employee benefit plan" within the meaning
of ERISA or the assets of a "plan" as defined in Section 4975(e)(1) of the Code
and (ii) that no Lender will transfer its interest herein unless the prospective
transferee makes the representations and warranties set forth in this
parenthetical phrase as if had originally been a party to this agreement)
hereunder will constitute a non-exempt prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.15 Environmental Matters. In the ordinary course of its business, the
officers of the Company consider the effect of Environmental Laws on the
business of the Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Company
and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has reasonably concluded that the Company and its
Subsidiaries are not in violation of any Environmental Laws in such a fashion
that could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any written notice to the effect that
its operations are not in material compliance with any of the requirements of
applicable Environmental Laws or, to the knowledge of any Borrower, are the
subject of any federal or state investigation evaluating whether any Remedial
Action is required to be performed by the Company or any of its
45
Subsidiaries, which non-compliance or Remedial Action could reasonably be
expected to have a Material Adverse Effect.
5.16 Investment Company Act. No Borrower is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act. No Borrower is a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
5.18 Subsidiary Borrowers. (a) Except as described on Schedule 5.8, each
Subsidiary Borrower is a direct or indirect Wholly Owned Subsidiary of the
Company (excluding director qualifying shares); and
(b) Each Subsidiary Borrower will have, upon becoming a party hereto, all
right and authority to enter into this Agreement and each other Loan Document to
which it is a party, and to perform all of its obligations under this and each
other Loan Document to which it is a party; all of the foregoing actions will
have been taken prior to any request for Loans by such Borrower, duly authorized
by all necessary action on the part of such Borrower, and when such Subsidiary
Borrower becomes a party hereto, this Agreement and each other Loan Document to
which it is a party will constitute valid and binding obligations of such
Borrower enforceable in accordance with their respective terms except as such
terms may be limited by the application of bankruptcy, moratorium, insolvency
and similar laws affecting the rights of creditors generally and by general
principles of equity.
5.19 Insurance. The Company and its Subsidiaries maintain insurance with
financially sound and reputable insurance companies (or self-insurance programs)
on their Property in such amounts (with such customary deductibles, exclusions
and self-insurance) and covering such risks as management of the Company
reasonably considers consistent with sound business practice.
5.20 Ownership of Properties. On the Effective Date, the Company and its
Subsidiaries will have good title, free of all Liens (other than as permitted by
Section 6.12), to all Property and assets reflected in the financial statements
as owned by it.
5.21 Labor Controversies. There are no labor controversies pending or, to
the best of the Company's knowledge, threatened against the Company or any
Subsidiary, that could reasonably be expected to have a Material Adverse Effect.
5.22 Burdensome Obligations. The Company does not presently anticipate
that future expenditures needed to meet the provisions of federal or state
statutes, orders, rules or regulations will be so burdensome as to cause a
Material Adverse Effect.
5.23 Reportable Transaction. The Company does not intend to treat the
Advances and related transactions as being a "reportable transaction" (within
the meaning of Treasury Regulation Section 1.6011-4). In the event the Company
determines to take any action inconsistent with such intention, it will promptly
notify the Agent thereof.
46
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Company will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with Agreement Accounting Principles, and furnish to the Lenders:
(i) Within 90 days (or such earlier date as the Company may be
required to file its applicable annual report on Form 10-K by the rules and
regulations of the SEC) after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in Agreement Accounting Principles
and required or approved by the Company's independent certified public
accountants) audit report certified by independent certified public accountants
reasonably acceptable to the Agent, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
statements, and a statement of cash flows, accompanied by a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within 45 days (or such earlier date as the Company may be
required to file its applicable annual report on Form 10-Q by the rules and
regulations of the SEC) after the close of each of the first three quarterly
periods of each fiscal year, for itself and its Subsidiaries, consolidated
unaudited balance sheets as at the close of each such period and consolidated
unaudited profit and loss statements and a consolidated unaudited statement of
cash flows for the period from the beginning of such fiscal year to the end of
such quarter, all certified by its Designated Financial Officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit I
(a "Compliance Certificate") signed by its Designated Financial Officer and
stating that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 30 Business Days
after the Company knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the Designated Financial Officer of the
Company, describing said Reportable Event and the action which the Company
proposes to take with respect thereto.
(v) As soon as possible and in any event within 15 Business Days
after receipt by the Company, a copy of (a) any written notice or claim to the
effect that the Company or any of its Subsidiaries is or may be liable to any
Person as a result of the Release by the Company, any of its Subsidiaries, or
any other Person of any Hazardous Substances into the environment, and (b) any
written notice alleging any violation of any Environmental Law by the Company or
any of its Subsidiaries, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(vi) Promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements that the Company or any of
its Subsidiaries sends to or files with any
47
of their respective securities holders or any securities exchange or the SEC
pertaining to the Company or any of its Subsidiaries as the issuer of
securities.
(vii) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds. The Company will, and will cause each Subsidiary to,
use the proceeds of the Advances for general corporate purposes, including
Acquisitions and commercial paper back up. The Company will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Advances to purchase or
carry any Margin Stock in any way in violation of Regulation T, U or X.
6.3 Notice of Default. The Company will, and will cause each Borrower and
Subsidiary to, give prompt notice in writing to the Agent of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Company will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same fields of
enterprise as it is presently conducted or fields related thereto or extensions
thereof (taking the Company and its Subsidiaries on a consolidated basis) and do
all things necessary to remain duly incorporated or organized, validly existing
and (to the extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, unless the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.5 Taxes. The Company will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those that are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.6 Insurance. The Company will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts (with such customary deductibles, exclusions
and self-insurance) and covering such risks as is consistent with sound business
practice.
6.7 Compliance with Laws. The Company will, and will cause each Subsidiary
to, comply with all Requirements of Law, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.8 Properties; Inspection. The Company will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements to the extent the Company
reasonably deems consistent with sound business practice. The Company will, and
will cause each Subsidiary to, permit the Agent and the Lenders, by their
respective representatives and agents, to reasonably inspect any of the Property
of the Company and each Subsidiary, the financial or accounting records of the
Company and each Subsidiary and other documents of the Company and each
Subsidiary, in each case only to the extent any of the foregoing is reasonably
related to the credit evaluation by the Agent and the Lenders under this
Agreement, to examine and make copies of such records and
48
documents of the Company and each Subsidiary, and to discuss the affairs,
finances and accounts of the Company and each Subsidiary with, and to be advised
as to the same by, their respective officers upon reasonable prior notice at
such reasonable times and intervals as the Agent may designate.
6.9 Merger. The Company will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that, provided that
no Default or Unmatured Default shall have occurred and be continuing or would
result therefrom on a pro forma basis reasonably acceptable to the Agent, the
Company may merge or consolidate with any other U.S. corporation and each
Subsidiary may merge or consolidate with any other Person, provided, further,
that (i) in the case of any such merger or consolidation involving the Company,
the Company is the surviving corporation and (ii) in the case of any such merger
or consolidation involving a Subsidiary which is a Subsidiary Borrower, the
surviving corporation assumes all of such Borrower's obligations under this
Agreement and remains or becomes a Subsidiary Borrower.
6.10 Sale of Assets. The Company will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person (other than to the Company or a Guarantor or between Foreign
Subsidiaries), except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales or other dispositions in the ordinary course of business of
fixed assets for the purpose of replacing such fixed assets, provided that such
fixed assets are replaced within 180 days of such sale or other disposition with
other fixed assets that have a fair market value not materially less than the
fixed assets sold or otherwise disposed of.
(iii) Any sale or other transfer of an interest in leases or lease
receivables or accounts or notes receivables on a limited recourse basis,
reasonably acceptable to the Agent, provided that (a) such sale or transfer
qualifies as a sale under Agreement Accounting Principles, and (b) the aggregate
outstanding amount of such financings in connection therewith shall not exceed
$200,000,000 (any such sale or other transfer, a "Permitted Securitization
Transaction").
(iv) Other leases, sales (including sale-leasebacks) or other dispositions
of its Property that, together with all other Property of the Company and its
Subsidiaries previously leased, sold or disposed of (other than as provided in
clauses (i) and (ii) above) as permitted by this Section during the twelve-month
period ending with the month prior to the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial Portion of the
Property of the Company and its Subsidiaries.
Notwithstanding anything in this Section 6.10 to the contrary, (a) no such
leases, sales or other dispositions of property may be made (other than pursuant
to clause (i) above) if any Default or Unmatured Default has occurred and is
continuing, and (b) all leases, sales and other dispositions of Property at any
time shall be for not materially less than the fair market value of such
Property as determined in good faith by the Company.
6.11 Investments and Acquisitions. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments, or
commitments therefor, or to make any Acquisition of any Person, except, so long
as no Default or Unmatured Default exists or would be caused thereby:
(i) Investments in Cash Equivalents.
(ii) Investments in Guarantors.
49
(iii) (a) Investments in existence on December 31, 2004 and (b)
Investments in a Securitization Entity in connection with Permitted
Securitization Transactions and in an aggregate outstanding amount not to exceed
10% of the aggregate amount of all Permitted Securitization Transactions plus
the leases and lease receivables and accounts and notes receivables permitted to
be transferred to a Securitization Entity in connection with Permitted
Securitization Transactions.
(iv) Other Investments provided that the aggregate amount of such
Investments made in any consecutive four fiscal quarter period does not exceed
10% of Total Assets as of the beginning of such period, as set forth on the
consolidated balance sheet of the Company included in the financial statements
of the Company delivered pursuant to Section 6.1(i) or (ii) for the most
recently ended fiscal quarter (or fiscal year if such fiscal quarter is the
fourth fiscal quarter of the Company's fiscal year) prior to such period.
(v) Any Acquisition so long as the aggregate amount of consideration
(including without limitation any payments in cash, Capital Stock or other
consideration, any direct or deferred payments (to the extent such deferred
payments should be shown as a liability on a balance sheet of the Company and
its Subsidiaries in accordance with Agreement Accounting Principles) and the
amount of any Indebtedness (other than Letters of Credit incurred in the
ordinary course of business) assumed or otherwise incurred in connection with
such Acquisition) paid or payable by the Company or any Subsidiary in connection
with any such Acquisition does not exceed 15% of Total Assets (as set forth on
the consolidated balance sheet of the Company included in the most recent
financial statements of the Company delivered pursuant to Section 6.1(i) or
(ii), prior to giving effect to such Acquisition) and such Acquisition is not
hostile and shall have been approved by the board of directors or similar
governing body of the target of such Acquisition.
6.12 Liens. The Company will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as landlord's, carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business that secure payment of obligations not more than 60 days past due or
that are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation (other than Liens in favor of the
PGBC).
(iv) Utility easements, building restrictions and such other encumbrances
or charges against real property as are of a nature generally existing with
respect to properties of a similar character and that do not in any material way
affect the marketability of the same or interfere with the use thereof in the
business of the Company or its Subsidiaries.
(v) Liens existing on the date hereof and described on Schedule 6.12,
provided that no increase in the principal amount secured thereby is permitted.
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(vi) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses, provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so secured
prior to such extension, renewal or replacement and that such extension, renewal
or replacement Lien shall be limited to all or a part of the assets that secured
the Lien so extended, renewed or replaced (plus improvements and construction on
such real property).
(vii) Liens not otherwise permitted by the foregoing provisions of this
Section 6.12, provided that the aggregate outstanding amount secured by all such
Liens shall not at any time exceed 10% of Tangible Net Worth.
(viii) Liens incurred in connection with any transfer of an interest in
leases or lease receivables or accounts or notes receivables which is permitted
pursuant to Section 6.10(iii) and which Liens are required to consummate such
Permitted Securitization Transaction.
(ix) Liens in favor of financial institutions against bank account
deposits in foreign bank accounts at such financial institution granted in the
ordinary course of business and consistent with standard business practices in
such foreign jurisdiction, provided that such deposit account is not a dedicated
cash collateral account and is not subject to restrictions against access by the
Company or its Subsidiaries.
6.13 [Intentionally deleted].
6.14 Affiliates. The Company will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except pursuant to the reasonable requirements of the Company's or
such Subsidiary's business and upon fair and reasonable terms (taken as a whole)
not materially less favorable to the Company or such Subsidiary than the Company
or such Subsidiary would obtain in a comparable arms-length transaction.
6.15 Indebtedness of certain Subsidiaries. The Company will not permit
any Subsidiary which is not a Guarantor to create, incur or suffer to exist any
Indebtedness, except:
(i) The Loans, the Facility Letters of Credit and the other Obligations.
(ii) Indebtedness outstanding on the date of this Agreement, but no
increase in the principal amount thereof, and Indebtedness consisting of avals
by any of the Company's Subsidiaries for the benefit of, and with respect to
obligations which are not classified as Indebtedness of, any of the Company's
other Subsidiaries which are entered into in the ordinary course of business and
consistent with standard business practices.
(iii) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided that such Indebtedness existed at the time such Person becomes
a Subsidiary and was not created in contemplation of or in connection with such
Person becoming a Subsidiary.
(iv) Any refunding or refinancing of any Indebtedness referred to in
clauses (ii) and (iii) above, provided that any such refunding or refinancing
does not increase the principal amount thereof.
(v) Indebtedness arising from (a) the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, or (b) the honoring by a bank or
51
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business.
(vi) Indebtedness of a Securitization Entity required in connection with
Permitted Securitization Transactions.
(vii) Other Indebtedness; provided that, at the time of the creation,
incurrence or assumption of such other Indebtedness and after giving effect
thereto, the aggregate amount of all such other Indebtedness of such
Subsidiaries does not exceed an amount equal to 10% of Tangible Net Worth at
such time.
6.16 Limitation on Restrictions on Subsidiary Distributions. The Company
will not, and will not permit any Subsidiary to, enter into or suffer to exist
or become effective any consensual encumbrance or restriction on the ability of
any Subsidiary of the Company to (i) pay dividends or make any other
distributions in respect of any Capital Stock of such Subsidiary held by, or pay
any Indebtedness owed to, the Company or any other Subsidiary of the Company,
(ii) make loans or advances to the Company or any other Subsidiary of the
Company or (iii) transfer any of its assets to the Company or any other
Subsidiary of the Company, except for such encumbrances or restrictions existing
under or by reason of (a) any restrictions existing under the Loan Documents,
(b) any restrictions with respect to a Subsidiary imposed pursuant to an
agreement which has been entered into in connection with the disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary, (c) any
restrictions with respect to assets encumbered by a Lien permitted by Section
6.12 so long as such restriction applies only to the assets encumbered by such
permitted Lien, and (d) to the extent required by the minority shareholders
thereof, any restriction with respect to a Foreign Subsidiary of which less than
90% of the Voting Stock is owned by the Company or any of its Subsidiaries and
(e) such restrictions with respect to a Securitization Entity required in
connection with Permitted Securitization Transactions.
6.17 Financial Contracts. The Company will not, and will not permit any
Subsidiary to, enter into or remain a party to any Financial Contract for
purposes of financial speculation.
6.18 Total Net Debt to Capitalization Ratio. The Company shall not permit
its Total Net Debt to Capitalization Ratio to exceed 50%.
6.19 Interest Coverage Ratio. The Company shall not permit its Interest
Coverage Ratio to be less than 5.0 to 1.0 as of the last day of any fiscal
quarter.
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, including without limitation
those deemed made pursuant to Section 4.2, by or on behalf of the Company or its
Subsidiaries to the Lenders or the Agent in any Loan Document, in connection
with any Loan or Facility Letter of Credit, or in any certificate or information
delivered in writing in connection with any Loan Document or in any certificate
or information delivered in writing in connection with any Loan Document shall
be false in any material respect on the date as of which made.
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7.2 Nonpayment of principal of any Loan when due, or nonpayment of
interest on any Loan or of any facility fee within five Business Days after
written notice from the Agent that the same has become due, or nonpayment of any
other obligations under any of the Loan Documents within five Business Days
after written notice from the Agent that the same has become due.
7.3 The breach by any Borrower of any of the terms or provisions in
Sections 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18 or
6.19.
7.4 The breach by any Borrower or Guarantor (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement or any other Loan Document which is not remedied
within 30 days after written notice from the Agent.
7.5 Failure of the Company or any of its Subsidiaries to pay when due
any Indebtedness or Rate Hedging Obligations aggregating in excess of
$15,000,000 ("Material Indebtedness"); or the default by the Company or any of
its Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any such Material Indebtedness was
created or is governed, or any other event shall occur or condition exist, the
effect of which is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Company or any of its Subsidiaries shall not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.6 The Company or any of its Subsidiaries, shall (i) have an order for
relief entered with respect to it under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts or seeking similar
relief under any law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency or reorganization or relief of debtors or similar
proceeding or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate,
company or other action to authorize or effect any of the foregoing actions set
forth in this Section 7.6 or (vi) fail to contest in good faith any appointment
or proceeding described in Section 7.7.
7.7 Without its application, approval or consent, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Company or
any of its Subsidiaries or any Substantial Portion of their respective Property,
or a proceeding described in Section 7.6(iv) shall be instituted against the
Company or any of its Subsidiaries and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of 60
consecutive days.
7.8 Any court, government or governmental agency shall without
appropriate compensation condemn, seize or otherwise appropriate, or take
custody or control of (each a "Condemnation"), all or any portion of the
Property of the Company or any of its Subsidiaries which, when taken together
with all other Property of the Company and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such Condemnation occurs, constitutes
a Substantial Portion and is reasonably likely to have a Material Adverse
Effect.
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7.9 The Company or any of its Subsidiaries shall fail within 90 days to
pay, bond or otherwise discharge any judgment or order for the payment of money
in excess of $15,000,000 in aggregate amount for the Company and its
Subsidiaries, which is not stayed on appeal.
7.10 Any member of the Controlled Group shall fail to pay when due an
amount or amounts aggregating in excess of $15,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Single Employer Plan with Unfunded Liabilities in excess of $15,000,000 (a
"Material Plan") shall be filed under Section 4041(c) of ERISA by any member of
the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist that could reasonably be expected to
result in PBGC obtaining a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which causes one or more members of the Controlled
Group to incur a current payment obligation for withdrawal liability in excess
of $15,000,000 in aggregate amount for the Controlled Group.
7.11 The Company or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the Release by the Company or any of
its Subsidiaries or any other Person of any Hazardous Substance, or any
violation of any applicable Environmental Law, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
7.12 The occurrence of any Change of Control.
7.13. The occurrence of any "default", as defined in any Loan Document, or
the breach of any of the terms or provisions of any Loan Document, which default
or breach continues beyond any period of grace therein provided.
7.14 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or assert the invalidity or
unenforceability of any Guaranty by any Guarantor, or any Guarantor shall fail
to comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor denies that it has any further liability under any
Guaranty to which it is a party, or gives notice to such effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. (a) If any Default described in Section 7.6 or 7.7
occurs, (i) the obligations of the Lenders to make Loans hereunder and the
obligations of the Issuers to issue Facility Letters of Credit shall
automatically terminate and the Obligations shall immediately become due and
payable without presentment, demand, protest or notice of any kind, all of which
the Borrowers hereby expressly waive and without any election or action on the
part of the Agent or any Lender and (ii) each Borrower will be and become
thereby unconditionally obligated, without the need for demand or the necessity
of any act or evidence, to deliver to the Agent, at its address specified
pursuant to Article XIV, for deposit
54
into the Letter of Credit Collateral Account, an amount (the "Collateral
Shortfall Amount") equal to the excess, if any, of
(A) 100% of the sum of the aggregate maximum amount remaining available
to be drawn under the Facility Letters of Credit requested by such Borrower
(assuming compliance with all conditions for drawing thereunder) issued by an
Issuer and outstanding as of such time, over
(B) the amount on deposit for such Borrower in the Letter of Credit
Collateral Account at such time that is free and clear of all rights and claims
of third parties (other than the Agent and the Lenders) and that has not been
applied by the Lenders against the Obligations of such Borrower.
(b) If any Default occurs and is continuing (other than a Default
described in Section 7.6 or 7.7), (i) the Required Lenders may terminate or
suspend the obligations of the Lenders to make Loans and the obligation of the
Issuers to issue Facility Letters of Credit hereunder, or declare the
Obligations to be due and payable, or both, whereupon (if so declared) the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers hereby
expressly waive and (ii) the Required Lenders may, upon notice delivered to the
Borrowers with outstanding Facility Letters of Credit and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on each such Borrower to deliver (and each such Borrower will,
forthwith upon demand by the Required Lenders and without necessity of further
act or evidence, be and become thereby unconditionally obligated to deliver), to
the Agent, at its address specified pursuant to Article XIV, for deposit into
the Letter of Credit Collateral Account an amount equal to the Collateral
Shortfall Amount payable by such Borrower.
(c) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
Agent may make demand on the Borrowers with outstanding Facility Letters of
Credit to deliver (and each such Borrower will, forthwith upon demand by the
Agent and without necessity of further act or evidence, be and become thereby
unconditionally obligated to deliver), to the Agent as additional funds to be
deposited and held in the Letter of Credit Collateral Account an amount equal to
such Collateral Shortfall Amount payable by such Borrower at such time.
(d) The Agent may at any time or from time to time after funds are
deposited in the Letter of Credit Collateral Account, apply such funds to the
payment of the Obligations of the relevant Borrowers and any other amounts as
shall from time to time have become due and payable by the relevant Borrowers to
the Lenders under the Loan Documents.
(e) Neither the Borrowers nor any Person claiming on behalf of or
through the Borrowers shall have any right to withdraw any of the funds held in
the Letter of Credit Collateral Account. After all of the Obligations have been
indefeasibly paid in full or upon the request of the Company if no Default has
occurred and is continuing, any funds remaining in the Letter of Credit
Collateral Account shall be returned by the Agent to the applicable Borrower(s)
or paid to whoever may be legally entitled thereto at such time.
(f) The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Agent accords its own property, it
being understood that the Agent shall not have any responsibility for taking any
necessary steps to preserve rights against any Persons with respect to any such
funds.
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8.2 Amendments.
8.2.1 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
Borrowers may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrowers hereunder or waiving any
Default hereunder; provided, however, no such supplemental agreement shall, (i)
without the consent of the Required U.S. Revolving Credit Lenders, allow the
Company to obtain a U.S. Revolving Credit Loan or U.S. Facility Letter of Credit
if it would otherwise be unable to do so absent such supplemental agreement,
(ii) without the consent of the Required Euro Revolving Credit Lenders, allow
any Foreign Subsidiary Borrower to obtain a Euro Revolving Credit Loan or Euro
Facility Letter of Credit if it would otherwise be unable to do so absent such
supplemental agreement, (iii) without the consent of the Agent, modify any
rights or obligations of any kind of the Agent, and (iv) without the consent of
the Issuer, modify any rights or obligations of any kind of the Issuer, and
provided further, that no such supplemental agreement shall, without the consent
of each Lender:
(a) Extend the final maturity of any Loan, Note or Reimbursement
Obligation or postpone any regularly scheduled payment of principal of any 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.
(b) Reduce the percentage specified in the definition of Required
Lenders, Required Euro Revolving Credit Lenders or Required U.S. Revolving
Credit Lenders.
(c) Extend the Facility Termination Date, or reduce the amount or extend
the payment date for, the mandatory payments required under Section 2.6, or
increase the amount of any Commitment of any Lender hereunder or the Aggregate
Commitments other than as allowed hereunder, or permit any Borrower to assign
its rights under this Agreement.
(d) Amend this Section 8.2.1.
(e) Release any Guarantor which is the Company or a Significant
Subsidiary.
8.2.2 In addition to amendments effected pursuant to the foregoing,
Schedule 1.1(b) may be amended as follows:
(i) Schedule 1.1(b) will be automatically amended to add
Subsidiaries of the Company as additional Subsidiary Borrowers upon (a)
execution and delivery by the Company, any such Subsidiary Borrower and
the Agent, of a Joinder Agreement providing for any such Subsidiary to
become a Subsidiary Borrower, (b) delivery to the Agent of (A) a Domestic
Subsidiary Opinion or Foreign Subsidiary Opinion, as the case may be, in
respect of such additional Subsidiary Borrower and (B) such other
documents with respect thereto as the Agent shall reasonably request and
(C) the written approval of the Agent in its sole discretion.
(ii) Schedule 1.1(b) will be automatically amended to remove any
Subsidiary as a Subsidiary Borrower upon (A) written notice by the Company
to the Agent to such effect and (B) repayment in full of all outstanding
Loans and all other obligations pursuant to any Loan Document of such
Subsidiary Borrower.
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(iii) It is acknowledged and agreed that there may be more than one
Foreign Subsidiary Borrower, provided that there may not be a number
thereof more than reasonably allowed by the Agent.
8.2.3 No modification or waiver of any provision of this Agreement
relating to the Agent shall be effective without the written consent of the
Agent. No modification or waiver of any provision of this Agreement relating to
any Issuer shall be effective without the written consent of such Issuer. The
Agent may waive payment of the fee required under Section 13.3.2 without
obtaining the consent of any other party to this Agreement. Notwithstanding
anything herein to the contrary, any Defaulting Lender shall not be entitled to
vote (whether to consent or to withhold its consent) with respect to any
amendment, modification, termination or waiver and, for purposes of determining
the Required Euro Revolving Credit Lenders and Required U.S. Revolving Credit
Lenders, the Commitments and the Loans of such Defaulting Lender shall be
disregarded and the Agent shall have the ability, but not the obligation, to
replace any such Defaulting Lender with another lender or lenders.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrowers to satisfy the conditions precedent to such 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 Loan Documents 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 Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GUARANTEE
9.1 Guarantee. (a) The Company hereby unconditionally and irrevocably
guarantees to the Agent and the Lenders and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations owing by such
Subsidiary Borrowers.
(b) The Company further agrees to pay any and all reasonable expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which are paid or incurred by the Agent, or any Lender in enforcing any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Company under
this Section or, in the case of the Agent, obtaining advice of counsel in
respect thereof. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
(c) No payment or payments made by any Borrower or any other Person or
received or collected by the Agent or any Lender from any Borrower or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Company hereunder, which shall, notwithstanding any such
payment or payments, remain
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liable hereunder for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The Company agrees that whenever, at any time, or from time to time,
it shall make any payment to the Agent or any Lender on account of its liability
under this Section, it will notify the Agent and such Lender in writing that
such payment is made under this Section for such purpose.
9.2 No Subrogation. Notwithstanding any payment or payments made by the
Company hereunder, or any set-off or application of funds of the Company by the
Agent or any Lender, the Company shall not be entitled to be subrogated to any
of the rights of the Agent or any Lender against the Borrowers or against any
guarantee or right of offset held by the Agent or any Lender for the payment of
the Obligations, nor shall the Company seek or be entitled to seek any
contribution or reimbursement from the Borrowers in respect of payments made by
the Company hereunder, until all amounts owing to the Agent and the Lenders by
the Borrowers on account of the Obligations are paid in full and the Commitments
are terminated. If any amount shall be paid to the Company on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Company in trust for the Agent
and the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the Agent in the exact
form received by the Company (duly endorsed by the Company to the Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as Agent may determine. The provisions of this paragraph shall
survive the termination of this Agreement and the payment in full of the
Obligations and the termination of the Commitments.
9.3 Amendments, etc. with respect to the Obligations; Waiver of Rights.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
the Agent or the Required Lenders may be rescinded by the Agent or the Required
Lenders, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Agent or the Required
Lenders, and any Loan Documents and any other documents executed and delivered
in connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, in accordance with the provisions thereof as the Agent (or the
Required Lenders, as the case may be) may deem advisable from time to time, and
any guarantee or right of offset at any time held by the Agent or any Lender for
the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. None of the Agent or any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Agreement or any property subject thereto. When making
any demand hereunder against the Company, the Agent or any Lender may, but shall
be under no obligation to, make a similar demand on any other Borrower or any
other guarantor, and any failure by the Agent or any Lender to make any such
demand or to collect any payments from any other Borrower or any such other
guarantor or any release of the Borrowers or such other guarantor shall not
relieve the Company of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agent or any Lender against the Company. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
9.4 Guarantee Absolute and Unconditional. The Company waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Agent or any Lender upon this
Agreement or acceptance of this Agreement; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended,
58
amended or waived, in reliance upon this Agreement; and all dealings among the
Borrowers, on the one hand, and the Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Agreement. The Company waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Subsidiary
Borrowers and the Company with respect to the Obligations. This Article IX shall
be construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of this
Agreement, any other Loan Document, any of the Obligations or any guarantee or
right of offset with respect thereto at any time or from time to time held by
the Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance by any Borrower) which may at any time be
available to or be asserted by any Borrower against the Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
any Borrower) that constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
Company under this Section 9.4, in bankruptcy or in any other instance (other
than a defense of payment or performance by the Borrowers). When pursuing its
rights and remedies hereunder against the Company, the Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against any Borrower or any other Person or against any guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from the Borrowers or any such other Person or to realize upon any such
guarantee or to exercise any such right of offset, or any release of the
Borrowers or any such other Person or of any such guarantee or right of offset,
shall not relieve the Company of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Agent or any Lender against the Company. This Article IX
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Company and its successors and assigns, and
shall inure to the benefit of the Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Company under this Agreement shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Borrowers may be free
from any Obligations.
9.5 Reinstatement. This Article IX shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or Trustee or similar
officer for, any Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9.6 Payments. The Company hereby agrees that all payments required to be
made by it hereunder will be made to the Agent without set-off or counterclaim
in accordance with the terms of the Obligations, including, without limitation,
in the currency in which payment is due.
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ARTICLE X
GENERAL PROVISIONS
10.1 Survival of Representations. All representations and warranties of
the Borrowers contained in this Agreement shall survive delivery of the Loan
Documents and the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to a
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Taxes. Any taxes (excluding income taxes and franchise taxes
(imposed in lieu of income taxes), imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document)) or other similar assessments or
charges made by any governmental or revenue authority in respect of the Loan
Documents shall be paid by the Company, together with interest and penalties, if
any.
10.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrowers, the Agent and the
Lenders relating to the subject matter thereof other than any fee letters among
any Borrowers and either of the Agent or Arranger and any other agreements of
any of the Borrowers with the Agent which survive the execution of the Loan
Documents.
10.6 Several 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.
10.7 Expenses; Indemnification. (i) The Borrowers shall reimburse the
Agent and the Arranger for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable 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 (including, without limitation, preparation of the reports
described below) of the Loan Documents. The Borrowers also agree to reimburse
the Agent, the Arranger and the Lenders for any reasonable costs, internal
charges and out-of-pocket expenses (including reasonable 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 Loan Documents. The Borrowers acknowledge and
agree that from time to time the Agent may prepare and may distribute to the
Lenders (but shall have no obligation
60
or duty to prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to any Borrower's and Guarantors' assets for internal use
by the Agent from information furnished to it by or on behalf of the Borrowers,
after the Agent has exercised its rights of inspection pursuant to this
Agreement; provided that, if any Lender requests copies of any future similar
Reports which the Agent has prepared, then the Agent will provide such reports
to such Lender provided that such Lender has executed an indemnity agreement
acceptable to the Agent. The Borrowers further acknowledge and agree that the
Agent or any of its agents or representatives may conduct reasonable
comprehensive field audits of the Property of the Company and each Subsidiary,
financial or accounting records of the Company and each Subsidiary and other
documents of the Company and each Subsidiary, in each case only to the extent
any of the foregoing is reasonably related to the credit evaluation by the Agent
and the Lenders under this Agreement, provided that (x) other than after the
occurrence and during continuance of a Default, no more than one such
comprehensive field audit shall be conducted in any fiscal year and (y) only
after the occurrence and during continuance of a Default shall such field audits
be at the Company's expense.
(ii) The Borrowers hereby further agree to indemnify the Agent, the
Arranger and each Lender, and their respective directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
reasonable expenses (including, without limitation, all reasonable 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 at any time
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan or Facility Letters of Credit
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 Borrowers under this Section 10.7 shall
survive the termination of this Agreement.
10.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. For purposes of Article VI (including any baskets or limitations
expressed in U.S. Dollars therein) of this Agreement, any Indebtedness,
Investment or other amount made or incurred in any currency other than U.S.
Dollars shall be deemed to be the U.S. Dollar Equivalent thereof.
10.9 Severability of Provisions. Any provision in any 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 Loan Documents are declared to be severable.
10.10 Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to any
Borrower. Neither the Agent nor any Lender undertakes any responsibility to any
Borrower to review or inform any Borrower of any matter in connection with any
phase of such Borrower's business or operations. Each Borrower agrees that
neither the Agent nor any Lender shall have liability to any Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by any Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined by
a court of competent jurisdiction in a final and non-appealable order that such
losses resulted from the gross negligence or willful misconduct of, or
61
violation of applicable laws or any of the Loan Documents by, the party from
which recovery is sought. Neither the Agent nor any Lender shall have any
liability with respect to, and each Borrower hereby waives, releases and agrees
not to xxx for, any special, indirect or consequential damages suffered by the
Borrowers in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
10.11 Confidentiality. Each Lender agrees to hold any information that it
may receive from any Borrower pursuant to this Agreement (such information,
exclusive of Non-Confidential Information as defined below, is defined herein as
the "Confidential Information") in confidence, and will not disclose or use for
any purpose other than its credit evaluation under this Agreement such
Confidential Information, except for disclosure: (i) to any Transferee or
prospective Transferee to the extent provided in Section 13.4; (ii) to legal
counsel, accountants and other professional advisors to that Lender to the
extent necessary to advise that Lender concerning its rights or obligations in
respect of this Agreement; provided that such professional advisor agrees to
hold any Confidential Information which it may receive in confidence and not to
disclose or use such Confidential Information for any purpose other than
advising that Lender with respect to its rights and obligations under this
Agreement; (iii) to regulatory officials to the extent required by applicable
law, rule, regulations, order, policy or directive (whether or not any such
policy or directive has the force of law); and (iv) pursuant to any order of any
court, arbitrator or Governmental Authority of competent jurisdiction (or as
otherwise required by law); provided, however, that the Lender (or other Person
given Confidential Information by such Lender) shall provide the Company with
prompt notice of any such required disclosure so that the Company may seek a
protective order or other appropriate remedy, and in the event that such
protective order or other remedy is not obtained, such Lender (or such other
Person) will furnish only that portion of the Confidential Information which is
legally required. As used herein, "Non-Confidential Information" shall mean any
information which (a) is or becomes generally available to the public other than
as a result of a disclosure by the Lender or the Lender's representatives, or
(b) becomes available to the Lender on a non-confidential basis from a source
other than the Company or one of its agents or (c) was known to the Lender on a
non-confidential basis prior to its disclosure to the Lender by the Company or
one of its agents.
10.12 Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any Margin Stock for the repayment of the Loans provided for
herein.
10.13. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act") hereby notifies the Borrowers that pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the name and address
of the Borrowers and other information that will allow such Lender to identify
the Borrowers in accordance with the Act.
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ARTICLE XI
THE AGENT
11.1 Appointment; Nature of Relationship. JPMorgan Chase is hereby
appointed by the Lenders as the Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent agrees to act as
such contractual representative upon the express conditions contained in this
Article XI. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
11.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall not have any implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
11.3 General Immunity. Neither Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrowers, the Lenders or any Lender
for (a) any action taken or omitted to be taken by it or them hereunder or under
any other Loan Document or in connection herewith or therewith except to the
extent such action or inaction is determined in a final non-appealable judgment
by a court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person; or (b) any determination by the Agent that
compliance with any law or any governmental or quasi-governmental rule,
regulation, order, policy, guideline or directive (whether or not having the
force of law) requires the Advances and Commitments hereunder to be classified
as being part of a "highly leveraged transaction".
11.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV; (iv)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (v) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; (vi) the existence or possible existence of any
Default or Unmatured Default; or (vii) the financial condition of any Borrower
or Guarantor or any of their respective Subsidiaries. The Agent shall not have
any duty to disclose to the Lenders information that is not required to be
furnished by the Borrowers to the Agent at the time, but is voluntarily
furnished by the Borrowers to the Agent (either in its capacity as the Agent or
in its individual capacity).
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11.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all Lenders if required under Section 8.2.1), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of the Obligations. The Lenders
hereby acknowledge that the Agent shall not be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. The Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
11.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
11.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper Person or Persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify (to the extent not reimbursed by a Borrower and without
limiting the obligation of any Borrower to do so) the Agent ratably in
proportion to the U.S. Dollar Equivalent of their respective Commitments (or, if
the Commitments have been terminated, in proportion to the U.S. Dollar
Equivalent of their respective Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Company for which the
Agent is entitled to reimbursement by the Company or the other Borrowers under
the Loan Documents, (ii) for any other expenses incurred by the Agent on behalf
of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders)
and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred by or asserted
against the Agent in connection with any dispute between the Agent and any
Lender or between two or more of the Lenders), or the enforcement of any of the
terms thereof or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent. The
obligations of the Lenders under this Section 11.8 shall survive payment of the
Obligations and termination of this Agreement.
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11.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or a Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
11.10 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not an Agent,
and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Company or any of its Subsidiaries in which the Company
or such Subsidiary is not restricted hereby from engaging with any other Person.
11.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
11.12 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of a successor Agent or, if no such successor Agent has
been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, with the consent of the Company (unless a Default has
occurred and is continuing), on behalf of the Borrowers and the Lenders, a
successor Agent to the Agent. If no such successor Agent shall have been so
appointed by the Required Lenders within thirty days after such resigning
Agent's giving notice of its intention to resign, then such resigning Agent may
appoint, with the consent of the Company (unless a Default has occurred and is
continuing), on behalf of the Company and the Lenders, a successor Agent for
itself. If the Agent has resigned and no successor Agent has been appointed, the
Lenders may perform all the duties of the Agent hereunder and the Company shall
make all payments in respect of the Obligations to the applicable Lender and for
all other purposes shall deal directly with the Lenders. No successor Agent
shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation of the Agent, the resigning or removed
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article XI shall continue in effect for the benefit of the
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as an Agent hereunder and under the other Loan Documents.
11.13 Right to Indemnity. The Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Lenders pro rata against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
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11.14 Delegation to Affiliates. The Borrowers and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver, and other
protective provisions to which the Agent is entitled under Articles X and XI.
11.15 Co-Syndication Agents, Documentation Agents, Managing Agent, etc.
Neither any of the Lenders identified in this Agreement as a Co-Syndication
Agent, Documentation Agent nor Managing Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as a Lender. Without limiting the foregoing,
none of such Lenders shall have or be deemed to have a fiduciary relationship
with any Lender. Each Lender hereby makes the same acknowledgments with respect
to such Lenders as it makes with respect to the Agent in Section 11.11.
ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS
12.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, 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 to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such Lender
by such Borrower.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Obligations owing from a Borrower (other than
payments received pursuant to Section 3.1, 3.2, 3.4, 3.6 or 10.7) in a greater
proportion than that received by any other Lender on its Obligations owing from
such Borrower, such Lender agrees, promptly upon demand, to purchase a portion
of the Advances to such Borrower held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Advances to such
Borrower. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives any protection for its
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 protection ratably in proportion to their Aggregate
Revolving Credit Outstandings (in accordance with the formula set forth in the
next sentence).
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 13.3. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement, and the Loan
Documents to a Federal Reserve Bank; provided, however, that no such assignment
to a Federal
66
Reserve Bank shall release the transferor Lender from its obligations hereunder.
The Agent may treat the payee of any Loan Document as the owner thereof for all
purposes hereof unless and until such payee complies with Section 13.3 in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Agent. Any assignee or transferee of
any of the Advances or a Note agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of any of the Advances or a holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Subject to Section 13.4, any Lender
may, in the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities ("Participants")
participating interests in any Obligations owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Obligations or Note for all
purposes under the Loan Documents, all amounts payable by the Borrowers under
this Agreement shall be determined as if such Lender had not sold such
participating interests (including without limitation payments with respect to
Non-Excluded Taxes), and the Borrowers and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
13.2.2 Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan or Commitment, extends the
Facility Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or Commitment,
releases the Company as guarantor of any such Loan or releases all or
substantially all of the collateral, if any, securing any such Loan.
13.3 Assignments.
13.3.1 Permitted Assignments. Subject to Section 13.4, any Lender may, in
the ordinary course of its business and in accordance with applicable law, at
any time assign to one or more banks, finance companies, insurance companies or
other financial institutions or funds that are engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
or any other entity ("Purchasers") all or any part of its rights and obligations
under the Loan Documents. Such assignment shall be substantially in the form of
Exhibit J hereto (an "Assignment") or in such other form as may be agreed to by
the parties thereto. The consent of the Agent, any Issuer and the Company shall
be required prior to an assignment becoming effective, which consent shall not
be unreasonably withheld or delayed and shall not be required if such assignment
is to another Lender or to an Affiliate of a Lender; provided, upon and during
the continuance of any Default, the consent of the Company shall not be
required. Each such assignment shall be in an amount not less than the lesser of
(i) $5,000,000 and in multiples of $1,000,000 (or its approximate equivalent in
the relevant Available Foreign Currency) or (ii) unless such assignment is of
the entire amount of the commitments of such Lender, an amount such that the
remaining amount of the assigning Lender's Commitment (calculated as at the date
of such
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assignment) shall not be less than $5,000,000 (or its approximate equivalent
thereof in the relevant Available Foreign Currency).
13.3.2 Effect; Effective Date. Upon (i) delivery to the Agent of an
Assignment, together with any consents required by Section 13.3.1, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment, such
assignment shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Company, the Lenders or
the Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitments and Advances assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Agent and the Company shall make appropriate
arrangements so that replacement Notes, if applicable, are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
13.3.3 (i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Designating Lender") may, with the prior written approval of the
Company (which approval shall not be unreasonably withheld), grant to one or
more special purpose funding vehicles (each, an "SPV", identified as such in
writing from time to time by the Designating Lender to the Agent and the
Company, the option to provide to a Borrower all or any part of any Loan that
such Designating Lender would otherwise be obligated to make to such Borrower
pursuant to this Agreement, provided that (A) nothing herein shall constitute a
commitment by any SPV to make any Loan, (B) if any SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Designating Lender shall be obligated to make such Loan pursuant to the terms
hereof, (C) the Designating Lender shall remain liable for any indemnity or
other payment obligation with respect to its Commitments hereunder and (D) the
Borrowers shall not incur any additional costs or expenses as a result of any
such grant by a Designated Lender to an SPV. The making of a Loan by an SPV
hereunder shall utilize the relevant Commitment of the Designating Lender to the
same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have
all the rights that a Lender making such Loans or portion thereof would have had
under this Agreement; provided, however, that each SPV shall have granted to its
Designating Lender an irrevocable power of attorney, to deliver and receive all
communications and notices under this Agreement (and any related documents) and
to exercise on such SPV's behalf, all of such SPV's voting rights under this
Agreement. No additional Note shall be required to evidence the Loans or portion
thereof made by an SPV; and the related Designating Lender shall be deemed to
hold its Note as agent for such SPV to the extent of the Loans or portion
thereof funded by such SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or payment under this Agreement for which a Lender would otherwise be
liable. In furtherance of the foregoing, each party hereto hereby agrees (which
agreements shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
68
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement insolvency or liquidation proceedings
under the laws of the United States or any State thereof.
(iv) In addition, subject to Section 13.4, any SPV may, with the prior
written approval of the Company (which approval shall not be unreasonably
withheld), (A) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Loans to the
Designating Lender or to any financial institutions providing liquidity and/or
credit support to or for the account of such SPV to support the funding or
maintenance of Loans and (B) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancements to such
SPV. This 13.3.3 may not be amended without the written consent of any
Designating Lender affected thereby.
13.4 Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the 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 Company and its Subsidiaries, provided
that each Transferee and prospective Transferee agrees to be bound by Section
10.12.
13.5 Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee that is organized under the laws of any jurisdiction other
than the United States or any State thereof (in the case of a Transferee that is
a Lender to the Company or a Domestic Subsidiary Borrower), or of the
jurisdiction in which a Foreign Subsidiary Borrower is located (in the case of a
Transferee which is a Lender to such Foreign Subsidiary Borrower), the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.6.
ARTICLE XIV
NOTICES
14.1 Notices. Except as otherwise permitted by Section 2.11 with respect
to borrowing 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: (x)
in the case of a Borrower or the Agent, at its address, facsimile number or
e-mail address set forth on the signature pages hereof, (y) in the case of any
Lender, at its address, facsimile number or e-mail address set forth below its
signature hereto or otherwise established pursuant to an Assignment or (z) in
the case of any party, at such other address, facsimile number or e-mail address
as such party may hereafter specify for the purpose by notice to the Agent and
the Borrowers in accordance with the provisions of this Section 14.1. 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, (iii) if given by electronic
transmission, when transmitted and received (with an appropriate confirmation of
receipt of delivery), all pursuant to procedures approved by the Agent, provided
that the approval of such procedures may be modified or revoked by the Agent
from time to time with prior notice to the Company and may be limited to
particular notices or other communications, or (iv) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent under Article II shall not be effective until received.
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14.2 Change of Address. Any Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XV
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 Borrowers, the Agent and the Lenders
and each party has notified the Agent by telex or telephone, that it has taken
such action.
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION,
WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
16.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
16.2 WAIVER OF JURY TRIAL. EACH BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVES 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 LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
16.3 Submission To Jurisdiction; Waivers. (a) Each Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of any United States federal or Illinois state court
sitting in Chicago, Illinois and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to the Company or such Foreign Subsidiary Borrower,
as the case may be, at the address specified in Section 14.1, or at
such other address of which the Agent shall have been notified
pursuant thereto;
70
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints the Company as
its agent for service of process in any proceeding referred to in Section
16.3(i) and agrees that service of process in any such proceeding may be made by
mailing or delivering a copy thereof to it care of Company at its address for
notices set forth in Section 14.1.
16.4 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary relationship
with or duty to such Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
the Agent and the Lenders, on the one hand, and the Borrowers, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrowers and the Lenders.
16.5 Power of Attorney. Each Subsidiary Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact with
regard to matters relating to this Agreement and each other Loan Document,
including, without limitation, execution and delivery of any amendments,
supplements, waivers or other modifications hereto or thereto, receipt of any
notices hereunder or thereunder and receipt of service of process in connection
herewith or therewith. Each Subsidiary Borrower hereby explicitly acknowledges
that the Agent and each Lender have executed and delivered this Agreement and
each other Loan Document to which it is a party, and has performed its
obligations under this Agreement and each other Loan Document to which it is a
party, in reliance upon the irrevocable grant of such power of attorney pursuant
to this subsection. The power of attorney granted by each Subsidiary Borrower
hereunder is coupled with an interest.
16.6 Judgment. (a) If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, under applicable law that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it to
any Lender 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
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"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to any Lender,
such Lender agrees to remit to such Borrower such excess.
[Signatures on the following pages]
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have executed
this Agreement as of the date first above written.
DIEBOLD, INCORPORATED
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
DIEBOLD INTERNATIONAL LIMITED,
as a Subsidiary Borrower
DIEBOLD SELF-SERVICE SOLUTIONS
LIMITED LIABILITY COMPANY,
as a Subsidiary Borrower
DIEBOLD AUSTRALIA PTY LTD, as a
Subsidiary Borrower
By: ______________________________________________
Print Name: ______________________________________
Title: Authorized Signatory
Address for notices for each Borrower:
0000 Xxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000-0000
Attention: Chief Financial Officer and Assistant
Treasurer
Fax: 000-000-0000/4555
E-mail: xxxxxxx@xxxxxxx.xxx
xxxxxxx@xxxxxxx.xxx
73
JPMORGAN CHASE BANK, N.A., as Agent
and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
0000 Xxxxxxx Xxxxxxx, Xxxxx X-0
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxx Xxxxxx
Fax: 000-000-0000
E-mail: xxxx_x_xxxxxx@xxxxxxx.xxx
KEYBANK NATIONAL ASSOCIATION, as a
Co-Syndication Agent and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
000 Xxxxxx Xxxxxx
XX00-00-0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Fax: 000-000-0000
E-mail: ______________________________
NATIONAL CITY BANK, as a Co-Syndication
Agent and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
0000 X. Xxxxx Xxxxxx
Locator Code: 2077
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax: 000-000-0000
E-mail: ___________________________
74
BANK OF AMERICA, N.A., as a
Documentation Agent and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx Xxxxxxxxxxx
Mailstop MA5-100-09-03
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: Xxxxx.Xxxxxxxx.Xxxxxxxxxxx
@Xxxxxxxxxxxxx.xxx
PNC BANK, NATIONAL ASSOCIATION, as a
Documentation Agent and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
________________________
________________________
Attention: _____________
Fax: ___________________
E-mail: ________________
THE BANK OF NEW YORK, as a
Managing Agent and as a Lender
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx XxXxxxxxx
Fax: 000-000-0000
E-mail: ______________________
75
U.S. BANK, N.A.
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
____________________________
____________________________
Attention: ____________
Fax: __________________
E-mail: _______________
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
___________________________
___________________________
Attention: ____________
Fax: __________________
E-mail: _______________
HSBC BANK USA, N.A., successor by merger
to HSBC Bank USA
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Fax: 000-000-0000
E-mail: xxxxx.xxxxx@xx.xxxx.xxx
76
ABN-AMRO BANK, N.V.
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
000 X. Xxxxxxx, Xxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Noique
Fax: 000-000-0000
E-mail: xxxxxx.xxxxxx@xxxxxxx.xxx
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THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
Attention: Xxxxx Xxxxxx
Fax: ______________
E-mail: _______________
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