EXHIBIT 4(c)
CREDIT AGREEMENT
DATED AS OF APRIL 17, 2002
AMONG
MODINE MANUFACTURING COMPANY,
THE LENDERS,
BANK ONE, NA
AS AGENT, AS LC ISSUER AND AS SWING LINE LENDER,
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER,
SUNTRUST BANK
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
AS SYNDICATION AGENTS
AND
M&I MARSHALL & ILSLEY BANK
AS DOCUMENTATION AGENT
TABLE OF CONTENTS
Page
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CREDIT AGREEMENT 1
Article 1 DEFINITIONS 1
Article 2 THE CREDITS 18
Section 2.1 Commitment. 18
Section 2.2 Swing Line Loans. 18
Section 2.3 Determination of Dollar Amounts;
Required Payments; Termination. 20
Section 2.4 Ratable Loans. 20
Section 2.5 Types of Advances. 20
Section 2.6 Commitment Fee; Reductions in
Aggregate Commitment. 20
Section 2.7 Minimum Amount of Each Advance. 21
Section 2.8 Optional Principal Payments. 21
Section 2.9 Method of Selecting Types and
Interest Periods for New Advances. 21
Section 2.10 Conversion and Continuation of
Outstanding Advances. 22
Section 2.11 Method of Borrowing. 23
Section 2.12 Changes in Interest Rate, etc. 23
Section 2.13 Rates Applicable After Default. 23
Section 2.14 Method of Payment. 24
Section 2.15 Advances to Be Made in Euro. 25
Section 2.16 Noteless Agreement; Evidence of
Indebtedness. 25
Section 2.17 Telephonic Notices. 25
Section 2.18 Interest Payment Dates; Interest
and Fee Basis. 26
Section 2.19 Notification of Advances, Interest
Rates, Prepayments and Commitment
Reductions. 26
Section 2.20 Lending Installations. 26
Section 2.21 Non-Receipt of Funds by the Agent. 26
Section 2.22 Facility LCs. 27
Section 2.23 Market Disruption. 31
Section 2.24 Judgment Currency. 32
Section 2.25 Replacement of Lender. 32
Section 2.26 Inccrease of Aggregate Commitment. 33
Article 3 YIELD PROTECTION; TAXES 34
Section 3.1 Yield Protection. 34
Section 3.2 Changes in Capital Adequacy
Regulations. 35
Section 3.3 Availability of Types of Advances. 36
Section 3.4 Funding Indemnification. 36
Section 3.5 Taxes. 36
Section 3.6 Lender Statements; Survival of
Indemnity. 38
Article 4 CONDITIONS PRECEDENT 38
Section 4.1 Initial Credit Extension. 38
Section 4.2 Each Credit Extension. 40
Article 5 REPRESENTATIONS AND WARRANTIES 41
Section 5.1 Corporate Existence and Power. 41
Section 5.2 Authorization. 41
Section 5.3 Binding Effect. 41
Section 5.4 No Conflict; Government Consent. 41
Section 5.5 Financial Statements; Material
Adverse Change. 42
Section 5.6 Litigation and Contingent Obligations. 42
Section 5.7 Compliance with ERISA. 42
Section 5.8 Taxes. 43
Section 5.9 Subsidiaries. 43
Section 5.10 Not an Investment Company. 43
Section 5.11 Ownership of Property; Liens. 43
Section 5.12 Material Agreements; Default. 43
Section 5.13 Full Disclosure. 43
Section 5.14 Environmental Matters. 44
Section 5.15 Insolvency. 44
Section 5.16 Compliance with Laws. 44
Section 5.17 Regulation U. 45
Section 5.18 Public Utility Holding Company Act. 45
Section 5.19 Post-Retirement Benefits. 45
Section 5.20 Insurance. 45
Section 5.21 Plan Assets; Prohibited Transactions. 45
Article 6 COVENANTS 45
Section 6.1 Information. 45
Section 6.2 Inspection of Property, Books and
Records. 47
Section 6.3 Restricted Payments. 47
Section 6.4 Loans or Advances. 47
Section 6.5 Investments and Acquisitions. 47
Section 6.6 Negative Pledge. 48
Section 6.7 Maintenance of Existence. 48
Section 6.8 Dissolution. 48
Section 6.9 Consolidations, Mergers and Sales
of Assets. 49
Section 6.10 Use of Proceeds. 49
Section 6.11 Compliance with Laws; Payment of
Taxes and Other Claims. 49
Section 6.12 Insurance. 50
Section 6.13 Change in Fiscal Year. 50
Section 6.14 Maintenance of Property. 50
Section 6.15 Environmental Matters. 50
Section 6.16 Indebtedness. 50
Section 6.17 Sale of Accounts. 51
Section 6.18 Financial Covenants. 51
Section 6.19 Guaranties and Material Foreign
Subsidiary Pledges. 51
Section 6.20 Rate Management Transactions. 51
Section 6.21 Affiliates. 51
Section 6.22 Pledge Agreements. 52
Article 7 DEFAULTS 52
Article 8 ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 54
Section 8.1 Acceleration; Facility LC Collateral
Account. 54
Section 8.2 Amendments. 56
Section 8.3 Preservation of Rights. 56
Article 9 GENERAL PROVISIONS 57
Section 9.1 Survival of Representations. 57
Section 9.2 Governmental Regulation. 57
Section 9.3 Headings. 57
Section 9.4 Entire Agreement. 57
Section 9.5 Several Obligations; Benefits of
this Agreement. 57
Section 9.6 Expenses; Indemnification. 57
Section 9.7 Numbers of Documents. 58
Section 9.8 Accounting. 58
Section 9.9 Severability of Provisions. 58
Section 9.10 Nonliability of Lenders. 58
Section 9.11 Confidentiality. 59
Section 9.12 Nonreliance. 59
Section 9.13 Disclosure. 59
Article 10 THE AGENT 59
Section 10.1 Appointment; Nature of Relationship. 59
Section 10.2 Powers. 60
Section 10.3 General Immunity. 60
Section 10.4 No Responsibility for Loans,
Recitals, etc. 60
Section 10.5 Action on Instructions of Lenders. 60
Section 10.6 Employment of Agents and Counsel. 61
Section 10.7 Reliance on Documents; Counsel. 61
Section 10.8 Agent's Reimbursement and
Indemnification. 61
Section 10.9 Notice of Default. 62
Section 10.10 Rights as a Lender. 62
Section 10.11 Lender Credit Decision. 62
Section 10.12 Successor Agent. 62
Section 10.13 Agent and Arranger Fees. 63
Section 10.14 Delegation to Affiliates. 63
Section 10.15 Execution of Collateral Documents. 63
Section 10.16 Collateral Releases. 63
Article 11 SETOFF; RATABLE PAYMENTS 63
Section 11.1 Setoff. 63
Section 11.2 Ratable Payments. 64
Article 12 BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS 64
Section 12.1 Successors and Assigns. 64
Section 12.2 Participations. 65
Section 12.3 Assignments. 66
Section 12.4 Dissemination of Information. 67
Section 12.5 Tax Treatment. 67
Article 13 NOTICES 67
Section 13.1 Notices. 67
Section 13.2 Change of Address. 68
Article 14 COUNTERPARTS 68
Article 15 CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL 68
Section 15.1 CHOICE OF LAW. 68
Section 15.2 CONSENT TO JURISDICTION. 68
Section 15.3 WAIVER OF JURY TRIAL. 68
EXHIBITS
EXHIBIT A FORM OF OPINION
EXHIBIT B COMPLIANCE CERTIFICATE
EXHIBIT C ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT D LOAN/CREDIT RELATED MONEY TRANSFER
INSTRUCTION
EXHIBIT E NOTE
SCHEDULES
PRICING SCHEDULE
SCHEDULE 1 EUROCURRENCY PAYMENT OFFICES
OF THE AGENT
SCHEDULE 2 LENDING INSTALLATIONS
SCHEDULE 5.6 LITIGATION
SCHEDULE 5.9 SUBSIDIARIES
SCHEDULE 5.14(a) ENVIRONMENTAL MATTERS
SCHEDULE 5.14(b) HAZARDOUS MATERIALS
SCHEDULE 6.5 INVESTMENTS
SCHEDULE 6.16 INDEBTEDNESS AND LIENS
CREDIT AGREEMENT
This Agreement, dated as of April 17, 2002, is among
Modine Manufacturing Company, a Wisconsin corporation, the
Lenders and Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, as Swing Line Lender,
as LC Issuer and as Agent. The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of
related transactions, consummated on or after the date of this
Agreement, by which the Borrower or any of its Subsidiaries
(i) acquires any going business or all or substantially all of
the assets of any firm, corporation or limited liability company,
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
securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability
company.
"Advance" means a borrowing hereunder, (i) made by some
or all of the Lenders on the same Borrowing Date, or (ii)
converted or continued by the Lenders on the same date of
conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in
the case of Eurocurrency Loans, in the same Agreed Currency and
for the same Interest Period. The term "Advance" shall include
Swing Line Loans unless otherwise expressly provided.
"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 securities (or other ownership interests) 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 stock, by
contract or otherwise.
"Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article 10, and not in
its individual capacity as a Lender, and any successor Agent
appointed pursuant to Article 10.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as increased or reduced from time
to time pursuant to the terms hereof. The initial Aggregate
Commitment is $150,000,000.
"Aggregate Outstanding Credit Exposure" means, at any
time, the aggregate of the Outstanding Credit Exposure of all the
Lenders.
"Agreed Currencies" means (i) Dollars, (ii) so long as
such currencies remain Eligible Currencies, Japanese Yen and the
Euro, and (iii) any other Eligible Currency which the Borrower
requests the Agent to include as an Agreed Currency hereunder and
which is acceptable to all of the Lenders and, with respect to
the issuance of Facility LCs in an Agreed Currency, the LC
Issuer. For the purposes of this definition, "Japanese Yen"
means the lawful currency of Japan.
"Agreement" means this credit 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 from time to time,
applied in a manner consistent with that used in preparing the
financial statements referred to in Section 5.5.
"Alternate Base Rate" means, for any day, a rate of
interest per annum equal to the higher of (i) the Prime Rate for
such day and (ii) the sum of the Federal Funds Effective Rate for
such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time and as the
context may require, the percentage rate per annum at which (i)
commitment fees are accruing on the Available Aggregate
Commitment at such time, (ii) letter of credit fees are accruing
on the undrawn stated amount of standby Facility LCs at such time
or (iii) letter of credit fees are accruing on the undrawn stated
amount of commercial Facility LCs at such time, in each case as
set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of
any Type at any time, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type as
set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
"Approximate Equivalent Amount" of any currency with
respect to any amount of Dollars shall mean the Equivalent Amount
of such currency with respect to such amount of Dollars on or as
of such date, rounded up to the nearest amount of such currency
as determined by the Agent from time to time.
"Arranger" means Banc One Capital Markets, Inc., a
Delaware corporation, and its successors, in its capacity as Lead
Arranger and Sole Book Runner.
"Article" means an article of this Agreement unless
another document is specifically referenced.
"Authorized Officer" means any of the Chief Financial
Officer, Treasurer, or Controller of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time,
the Aggregate Commitment then in effect minus the Aggregate
Outstanding Credit Exposure at such time.
"Bank One" means Bank One, NA, a national banking
association having its principal office in Chicago, Illinois, in
its individual capacity, and its successors.
"Borrower" means Modine Manufacturing Company, a
Wisconsin corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is
made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"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 and New York City for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can
be made on the Fedwire system and 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
for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the
Fedwire system.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, and as it may be further
amended from time to time, 42 U.S.C. Section 9601 et seq.
"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 Equivalent Investments" means (i) short-term
obligations of, or fully guaranteed by, the United States of
America, (ii) with respect to Investments of a Foreign Subsidiary
only, direct obligations of such Foreign Subsidiary's Domestic
National Government maturing within one year, (iii) commercial
paper rated A-1 or better by S&P or P-1 or better by Moody's,
(iv) demand deposit accounts maintained in the ordinary course of
business, (v) (1) preferred stocks rated A3 or better by Moody's
or A- or better by S&P, (2) adjustable rate preferred stock funds
rated A3 or better by Moody's or A- or better by S&P, and
(3) municipal notes with credit support provided by, and putable
(within a period not to exceed one year from date of acquisition)
to, financial institutions rated A or better by Moody's, S&P, or
the Fitch Investor Service, (vi) tax exempt variable rate demand
notes rated AA or better by Moody's or S&P, provided that such
notes permit the Company to require the issuer to repurchase such
notes after a period of not more than one year from date of
acquisition thereof, and (vii) certificates of deposit issued by
and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000;
provided in each case that the same provides for payment of both
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principal and interest (and not principal alone or interest
alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Change in Control" means (a) with respect to any
Person or group of Persons acting in concert which on the date of
this Agreement owns 15% or more of the outstanding shares of
voting stock of the Borrower, the acquisition by any such Person
or group of Persons acting in concert of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or
more of the outstanding shares of voting stock of the Borrower;
or (b) with respect to any other Person or group of Persons
acting in concert, the acquisition by any such Person or group of
Persons, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting stock of the Borrower; or (c) as of
any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either (i) directors of the
Borrower as of the corresponding date of the previous year, (ii)
selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of
individuals described in clause (i), or (iii) selected or
nominated to become directors by the Board of Directors of the
Borrower of which a majority consisted of individuals described
in clause (i) and individuals described in clause (ii).
"Code" means the Internal Revenue Code of 1986, as
amended, reformed or otherwise modified from time to time.
"Collateral Agent" has the meaning given such term in
the Intercreditor Agreement.
"Collateral Documents" means, collectively, each
Foreign Subsidiary Pledge Agreement and each other agreement,
instrument or document that may at any time secure all or any
part of the Secured Obligations or any Guaranty.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of
such Lender to make Revolving Loans to, and participate in
Facility LCs issued upon the application of, the Borrower in an
aggregate amount not exceeding the amount set forth opposite its
signature below, as it may be modified as a result of any
assignment that has become effective pursuant to Section 12.3(b),
or as otherwise modified from time to time pursuant to the terms
hereof.
"Computation Date" is defined in Section 2.3.
"Consolidated Adjusted EBITDA" means, as to any Person
and with reference to any period, Consolidated EBIT plus, to the
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extent deducted in determining Consolidated Net Income,
depreciation and amortization, all calculated for such Person and
its Subsidiaries on a consolidated basis. "Consolidated Adjusted
EBITDA" for any period, as to any Person, shall be calculated to
be the actual amount for such period for such Person and its
Subsidiaries; provided, upon the consummation of any Acquisition,
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for calculations made from and after such Acquisition,
Consolidated Adjusted EBITDA shall be calculated on a pro forma
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basis including the target's historical Consolidated Adjusted
EBITDA for the applicable period using historical financial
statements obtained from the seller, broken down by fiscal
quarter in such Person's reasonable judgment (the amounts from
which may be adjusted solely as may be necessary to comply with
Agreement Accounting Principles).
"Consolidated EBIT" means, as to any Person and with
reference to any period, Consolidated Net Income plus, to the
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extent deducted from revenues in determining Consolidated Net
Income, (i) Consolidated Interest Expense, (ii) expense for
federal, state, local and foreign income and franchise taxes paid
or accrued and (iii) extraordinary losses incurred other than in
the ordinary course of business, minus, to the extent included in
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Consolidated Net Income, extraordinary gains realized other than
in the ordinary course of business, all calculated for such
Person and its Subsidiaries on a consolidated basis.
"Consolidated Interest Expense" means, as to any Person
and with reference to any period, the interest expense of such
Person and its Subsidiaries calculated on a consolidated basis
for such period including, without limitation, such interest
expense as may be attributable to Capitalized Leases, Receivables
Transaction Financing Costs, the discount or implied interest
component of Off-Balance Sheet Liabilities, all commissions,
discounts and other fees and charges owed with respect to Letters
of Credit and Net Mark-to-Market Exposure.
"Consolidated Net Income" means, as to any Person and
with reference to any period, the net income (or loss) of such
Person and its Subsidiaries calculated on a consolidated basis
for such period, excluding any non-cash charges or gains which
are unusual, non-recurring or extraordinary.
"Consolidated Net Worth" means as to any Person and at
any time the consolidated stockholders' equity of such Person and
its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Total Debt" means as to any Person and at
any time Indebtedness of such Person and its Subsidiaries
calculated on a consolidated basis.
"Contingent Obligation" of a Person means any
agreement, undertaking or arrangement by which such Person
assumes, guarantees, 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, take-or-pay contract or the obligations of any such
Person as general partner of a partnership with respect to the
liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section
2.10.
"Controlled Group" means all members of a controlled
group of corporations or other business entities and all trades
or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Credit Extension" means the making of an Advance or
the issuance of a Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an
Advance or the issuance date for a Facility LC.
"Default" means an event described in Article 7.
"Dollar Amount" of any currency at any date shall mean
(i) the amount of such currency if such currency is Dollars or
(ii) the equivalent in Dollars of such amount 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 or as of the most recent Computation Date
provided for in Section 2.3.
"Dollars" and "$" shall mean the lawful currency of the
United States of America.
"Domestic National Government" means, with respect to a
Foreign Subsidiary, the national government of the country in which
the Foreign Subsidiary's principal place of business is located.
"Domestic Subsidiary" means each Subsidiary of the
Borrower which is organized under the laws of the United States
of America or any state, territory or possession thereof.
"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
an 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, an Equivalent Amount of such currency is not readily
calculable, the Agent shall promptly notify the Lenders and the
Borrower, 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
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 2.
"Environmental Laws" means 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 (i) the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or
wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other
remediation thereof, including, without limitation, CERCLA.
"Environmental Liabilities" means all liabilities
(including anticipated compliance costs) in connection with or
relating to the business, assets presently or previously owned,
leased or operated property, activities (including, without
limitation, off-site disposal) or operations of the Borrower and
each of its Subsidiaries, whether vested or unvested, contingent
or fixed, actual or potential, known or unknown, which arise
under or relate to matters covered by Environmental Laws.
"Environmental Proceeding" means any judicial or
administrative proceeding arising from or in any way associated
with any Environmental Law.
"Environmental Release" means releases as defined in
CERCLA or under any other Environmental Law.
"Equivalent Amount" of any currency with respect to any
amount of Dollars at any date shall mean the equivalent in such
currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange
of the Agent for such other currency at 11:00 a.m., London time,
on the date on or as of which such amount is to be determined.
"Equivalent Foreign Rating" means, with respect to a
rating issued by Moody's, an equivalent rating issued by a
recognized rating agency comparable to S&P or Moody's and
reasonably acceptable to the Lender.
"ERISA" means the Employee Retirement Income Security
Act of 1974, 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.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance which, except
as otherwise provided in Section 2.13, bears interest at the
applicable Eurocurrency Rate.
"Eurocurrency Loan" means a Loan which, except as
otherwise provided in Section 2.13, bears interest at the
applicable Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean,
for each of the Agreed Currencies, the office, branch, affiliate
or correspondent bank of the Agent specified as the "Eurocurrency
Payment Office" for such currency in Schedule 1 hereto or such
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other office, branch, affiliate or correspondent bank of the
Agent as it may from time to time specify to the Borrower and
each Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a
Eurocurrency Advance for the relevant Interest Period, the sum of
(i) the quotient of (a) the Eurocurrency Reference Rate
applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin.
"Eurocurrency Reference Rate" means, with respect to a
Eurocurrency Advance for the relevant Interest Period, the
applicable British Bankers' Association LIBOR rate for deposits
in the applicable Agreed Currency as reported by any generally
recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period,
provided that, if no such British Bankers' Association LIBOR rate
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is available, the applicable Eurocurrency Reference Rate for the
relevant Interest Period shall instead be the rate determined by
the Agent to be the rate at which Bank One offers to place deposits
in the applicable Agreed Currency 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 Bank One's relevant Eurocurrency Loan
and having a maturity equal to such Interest Period.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it, by (i)
the jurisdiction under the laws of which such Lender or the Agent
is incorporated or organized or (ii) the jurisdiction in which
the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement,
unless another document is specifically referenced.
"Facility LC" is defined in Section 2.22(a).
"Facility LC Application" is defined in Section 2.22(c).
"Facility LC Collateral Account" is defined in Section
2.22(k).
"Facility Termination Date" means April 17, 2005 or any
earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof.
"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.
"Floating Rate" means, for any day, a rate per annum
equal to the sum of (i) the Alternate Base Rate for such day,
plus (ii) the Applicable Margin, in each case changing when and
as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except
as otherwise provided in Section 2.13, bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which, except as
otherwise provided in Section 2.13, bears interest at the
Floating Rate.
"Foreign Subsidiary" means each Subsidiary which is not
a Domestic Subsidiary.
"Foreign Subsidiary Pledge Agreement" means an agreement,
in form and substance satisfactory to the Agent and the Banks,
whereby the Borrower or a Guarantor holding equity interests in a
Material Foreign Subsidiary, pledges such equity interests (up to
65% of the aggregate equity interests in such Material Foreign
Subsidiary) to the Collateral Agent as collateral for the Secured
Obligations (or, if such pledgor is a Guarantor, such Guarantor's
Guaranty) as well as obligations to the holders of notes under the
Note Purchase Agreement, as such agreement may be amended or
modified and in effect from time to time.
"Fund" means any Person (other than a natural person)
that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"Guarantor" means each Domestic Subsidiary that has
executed and delivered a Guaranty and its successors and assigns.
"Guaranty" means a guaranty agreement, in form and
substance satisfactory to the Agent and the Banks, whereby a
Domestic Subsidiary guarantees the Secured Obligations, as such
agreement may be amended or modified and in effect from time to
time.
"Hazardous Materials" includes, without limitation, (i)
solid or hazardous waste, as defined in the Resource Conservation
and Recovery Act of 1980, or in any applicable state or local law
or regulation, (ii) hazardous substances, as defined in CERCLA,
or in any applicable state or local law or regulation, (iii)
gasoline, or any other petroleum product or by-product, (iv)
toxic substances, as defined in the Toxic Substances Control Act
of 1976, or in any applicable state or local law or regulation or
(v) insecticides, fungicides, or rodenticides, as defined in the
Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or
in any applicable state or local law or regulation, as each such
act, statute or regulation may be amended from time to time.
"Indebtedness" of a Person means, without duplication,
such Person's (i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from Property now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by
notes, acceptances, or other instruments, (v) obligations of such
Person to purchase securities or other Property arising out of or
in connection with the sale of the same or substantially similar
securities or Property, (vi) Capitalized Lease Obligations, (vii)
obligations in respect of Letters of Credit, (viii) Contingent
Obligations in respect of Indebtedness of any other Person, (ix)
Off-Balance Sheet Liabilities, (x) Receivables Transaction
Attributed Indebtedness, and (xi) 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.
"Intercreditor Agreement" means the Intercreditor and
Collateral Agency Agreement dated as of April 17, 2002, among the
Agent, the LC Issuer, the Lenders, the holders of notes under the
Note Purchase Agreement and Bank One, NA, as collateral agent, as
such agreement may be amended, restated or otherwise modified from
time to time.
"Interest Expense Coverage Ratio" means, as of any date
of calculation, the ratio of (i) the Borrower's Consolidated EBIT
for the then most recently ended four fiscal quarters to (ii) the
Borrower's Consolidated Interest Expense for the then most
recently ended four fiscal quarters.
"Interest Period" means, with respect to a Eurocurrency
Advance, a period of one, two, three or six months commencing on
a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six
months thereafter, provided, however, that if there is no such
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numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next
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succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
"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 arising in the ordinary
course of business on terms customary in the trade) 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
certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"LC Fee" is defined in Section 2.22(d).
"LC Issuer" means Bank One (or any subsidiary or
affiliate of Bank One designated by Bank One) in its capacity as
issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without
duplication, of (i) the aggregate undrawn stated amount under all
Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.22(e).
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors
and assigns. Unless otherwise specified, the term "Lender"
includes Bank One in its capacity as Swing Line Lender.
"Lending Installation" means, with respect to a Lender
or the Agent, the office, branch, subsidiary or affiliate of such
Lender or the Agent with respect to each Agreed Currency listed
on Schedule 2 or otherwise selected by such Lender or the Agent
----------
pursuant to Section 2.20.
"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.
"Leverage Ratio" means, as of any date of calculation,
the ratio of (i) the Borrower's Consolidated Total Debt
outstanding on such date to (ii) the Borrower's Consolidated
Adjusted EBITDA for the then most recently ended four fiscal
quarters.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, 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 a Revolving Loan or a Swing Line Loan, as
applicable.
"Loan Documents" means this Agreement, the Facility LC
Applications, any Notes issued pursuant to Section 2.16, each
Guaranty and the Collateral Documents.
"Material Adverse Effect" means a material adverse
effect on (i) the business, Property, condition (financial or
otherwise), results of operations, or prospects of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any Guarantor to perform its obligations under the
Loan Documents to which it is a party, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or
remedies of the Agent, the LC Issuer or the Lenders thereunder.
"Material Foreign Subsidiary" means, at any time, a
Foreign Subsidiary that meets one or both of the following
criteria: (i) such Foreign Subsidiary's total assets, determined
on a consolidated basis with its Subsidiaries is greater than or
equal to five percent (5%) of the consolidated total assets of
the Borrower and its Subsidiaries; or (ii) such Foreign
Subsidiary's Consolidated Adjusted EBITDA is greater than or
equal to five percent (5%) of the Borrower's Consolidated
Adjusted EBITDA.
"Modify" and "Modification" are defined in Section
2.22(a).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant
to a collective bargaining agreement or any other arrangement to
which the Borrower or any member of the Controlled Group is a
party to which more than one employer is obligated to make
contributions.
"National Currency Unit" means the unit of currency
(other than a Euro unit) of each member state of the European
Union that participates in the third stage of Economic and
Monetary Union.
"Net Mark-to-Market Exposure" of a Person means, as of
any date of determination, the excess (if any) of all unrealized
losses over all unrealized profits of such Person arising from
Rate Management Transactions. "Unrealized losses" means the fair
market value of the cost to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming
the Rate Management Transaction were to be terminated as of that
date), and "unrealized profits" means the fair market value of
the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(d).
"Note" means any promissory note issued pursuant to
Section 2.16 in the form of Exhibit E.
"Note Purchase Agreement" means the Note Purchase and
Private Shelf Agreement, dated as of September 29, 2000, as from
time to time in effect, by and between the Borrower, The
Prudential Insurance Company of America and the "Purchasers"
identified therein.
"Obligations" means all unpaid principal of and accrued
and unpaid interest on the Loans, all Reimbursement Obligations,
all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent, the LC Issuer or any indemnified
party arising under the Loan Documents.
"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, but excluding from this clause
(iv) Operating Leases.
"Operating Lease" of a Person means any lease of
Property (other than a Capitalized Lease) by such Person as lessee
which has an original term (including any required renewals and any
renewals effective at the option of the lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of
determination, the amount obtained by aggregating the present
values, determined in the case of each particular Operating Lease
by applying a discount rate (which discount rate shall equal the
discount rate which would be applied under Agreement Accounting
Principles if such Operating Lease were a Capitalized Lease) from
the date on which each fixed lease payment is due under such
Operating Lease to such date of determination, of all fixed lease
payments due under all Operating Leases of the Borrower and its
Subsidiaries.
"Other Taxes" is defined in Section 3.5(b).
"Outstanding Credit Exposure" means, as to any Lender
at any time, the sum of (i) the aggregate principal Dollar Amount
of its Revolving Loans outstanding at such time, plus (ii) an
----
amount equal to its Pro Rata Share of the aggregate principal
amount of Swing Line Loans outstanding at such time, plus (iii)
----
the Dollar Amount of its Pro Rata Share of the LC Obligations at
such time.
"Participants" is defined in Section 12.2(a).
"Payment Date" means the last Business Day of each
quarter.
"PBGC" means the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Permitted Encumbrances" means:
(a) Liens for taxes, assessments or governmental charges
or levies on the Borrower's or a Subsidiary's 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 the books of the Borrower or such Subsidiary.
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure payment
of obligations not more than 60 days past due.
(c) 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.
(d) 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 which do not in any material way affect the
marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries.
(e) Liens existing on the date hereof and described in
Schedule 6.16.
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(f) Liens incurred in connection with any transfer of
an interest in accounts or notes receivable or related assets as
part of a Qualified Receivables Transaction.
(g) Liens created after the date hereof by conditional
sale or other title retention agreements (including Capitalized
Leases) or in connection with purchase money Indebtedness with
respect to equipment and fixtures acquired by the Borrower or its
Subsidiaries in the ordinary course of business, involving the
incurrence of an aggregate amount of Indebtedness of no more than
$10,000,000 outstanding at any time for all such Liens (provided
that such Liens attach only to the assets financed and such
Indebtedness is incurred within 30 days following such purchase
and does not exceed 100% of the purchase price of the subject
assets).
(h) Liens in favor of the Collateral Agent, for the
benefit of the parties to the Intercreditor Agreement, granted
pursuant to any Collateral Document.
"Person" means any natural person, corporation, firm,
joint venture, partnership, limited liability company,
association, enterprise, trust 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 Borrower
or any member of the Controlled Group may have any liability.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Prime Rate" means a rate per annum equal to the prime
rate of interest announced from time to time by Bank One or its
parent (which is not necessarily the lowest rate changed to any
customer), changing when and as said prime rate changes.
"Property" of a Person means any and all property,
whether real, personal, tangible, intangible, or mixed, of such
Person, or other assets owned, leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a
portion equal to a fraction the numerator of which is such
Lender's Commitment and the denominator of which is the Aggregate
Commitment.
"Purchasers" is defined in Section 12.3(a).
"Qualified Receivables Transaction" means any
transaction or series of transactions that may be entered into by
the Borrower or any Subsidiary pursuant to which the Borrower or
any Subsidiary may sell, convey or otherwise transfer to a newly-
formed Subsidiary or other special-purpose entity, or any other
Person, any accounts or notes receivable and rights related
thereto on a limited recourse basis, provided that (i) such sale,
conveyance or transfer qualifies as a sale under Agreement
Accounting Principles and (ii) the Receivables Transaction
Attributed Indebtedness incurred in such transaction or series of
transactions does not exceed fifteen percent (15%) of the total
assets of the Borrower and its Subsidiaries on a consolidated
basis at any one time outstanding.
"Rate Management Transaction" means any transaction
(including an agreement with respect thereto) now existing or
hereafter entered into by the Borrower which is a rate swap,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to
any of these transactions) or any combination thereof, whether
linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Rate Management 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 (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Rate
Management Transactions.
"Receivables Transaction Attributed Indebtedness" means
the amount of obligations outstanding under the legal documents
entered into as part of any Qualified Receivables Transaction on
any date of determination that would be characterized as principal
if such Qualified Receivables Transaction were structured as a
secured lending transaction rather than as a purchase.
"Receivables Transaction Financing Cost" means such
portion of the fees, service charges, and other costs, as well as
all collections or other amounts retained by purchasers of
accounts or notes receivable and rights related thereto pursuant
to a Qualified Receivables Transaction, which are in excess of
amounts paid to the Borrower and its Subsidiaries under any
Qualified Receivables Transaction for the purchase of accounts or
notes receivable and rights related thereto pursuant to such
Qualified Receivables Transaction and are the equivalent of the
interest component of the financing if the transaction were
characterized as a secured lending transaction rather than as a
purchase.
"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.
"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 relating to the
extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal
Reserve System.
"Reimbursement Obligations" means, at any time, the
aggregate of all obligations of the Borrower then outstanding
under Section 2.22 to reimburse the LC Issuer for amounts paid by
the LC Issuer in respect of any one or more drawings under
Facility LCs.
"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, excluding, however, such events
as to which the PBGC has 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
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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 either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Reports" is defined in Section 9.6(a).
"Required Lenders" means Lenders in the aggregate
having at least fifty-one percent (51%) of the Aggregate
Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least fifty-one percent (51%)
of the Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an
Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities.
"Restricted Payment" means, with respect to any Person,
(i) any dividend or other distribution on any shares of such
Person's capital stock (except dividends payable solely in shares
of its capital stock) or (ii) any net payment on account of the
purchase, redemption, retirement, acquisition or sale of (A) any
shares of such Person's capital stock or (B) any option, warrant
or other right to acquire shares of such Person's capital stock.
"Revolving Loan" means, with respect to a Lender, such
Lender's loan made pursuant to its commitment to lend set forth
in Section 2.1 (or any conversion or continuation thereof).
"S&P" means Standard and Poor's Ratings 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
such Property as lessee.
"Schedule" refers to a specific schedule to this
Agreement, unless another document is specifically referenced.
"Section" means a numbered section of this Agreement,
unless another document is specifically referenced.
"Secured Obligations" means, collectively, (i) the
Obligations and (ii) all Rate Management Obligations owing to one
or more Lenders.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
"Specified Domestic Subsidiary" means, at any time,
each Domestic Subsidiary other than (i) Domestic Subsidiaries
that do not conduct a business of any kind and do not own or
possess any assets and (ii) so long as they remain private
charitable foundations, Modine Foundation, Inc., a Wisconsin
corporation, and Modine Manufacturing Company Foundation, Inc., a
Wisconsin corporation.
"Subsidiary" of a Person means (i) 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 (ii) 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" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the
Property of the Borrower and its Subsidiaries, Property which
represents more than 15% of the consolidated assets of the
Borrower and its Subsidiaries or property which is responsible
for more than 15% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries, in
each case, as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in
which such determination is made (or if financial statements have
not been delivered hereunder for that month which begins the
twelve-month period, then the financial statements delivered
hereunder for the quarter ending immediately prior to that month).
"Swing Line Borrowing Notice" is defined in Section
2.2(c).
"Swing Line Lender" means Bank One or such other Lender
which may succeed to its rights and obligations as Swing Line
Lender pursuant to the terms of this Agreement.
"Swing Line Limit" means $5,000,000.
"Swing Line Loan" means a Loan made available to the
Borrower by the Swing Line Lender pursuant to Section 2.2.
"Taxes" means any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and
any and all liabilities with respect to the foregoing, but
excluding Excluded Taxes and Other Taxes.
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"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature
as a Floating Rate Advance or a Eurocurrency Advance and with
respect to any Loan, its nature as a Floating Rate Loan or a
Eurodollar Loan.
"Unfunded Liabilities" means the amount (if any) by
which the present value of all vested and unvested accrued
benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan
terminations.
"Unmatured Default" means an event which but for the
lapse of time or the giving of notice, or both, would constitute
a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities 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, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or
controlled.
The foregoing definitions shall be equally applicable
to both the singular and plural forms of the defined terms.
ARTICLE 2
THE CREDITS
Section 2.1 Commitment. From and including the date of this
----------
Agreement and prior to the Facility Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this
Agreement, to (i) make Revolving Loans to the Borrower in Agreed
Currencies and (ii) participate in Facility LCs issued upon the
request of the Borrower, provided that, (x) after giving effect
--------
to the making of each such Loan and the issuance of each such
Facility LC, such Lender's Outstanding Credit Exposure shall not
exceed the Dollar Amount of its Commitment, (y) at no time shall
the outstanding amount of Loans in currencies other than Dollars
exceed $75,000,000 and (z) all Floating Rate Loans shall be made in
Dollars. Subject to the terms of this Agreement, the Borrower
may borrow, repay and reborrow at any time prior to the Facility
Termination Date. The Commitments to extend credit hereunder
shall expire on the Facility Termination Date. The LC Issuer
will issue Facility LCs hereunder on the terms and conditions set
forth in Section 2.22.
Section 2.2 Swing Line Loans.
----------------
(a) Amount of Swing Line Loans. Upon the satisfaction of
--------------------------
the conditions precedent set forth in Section 4.2 and, if such Swing
Line Loan is to be made on the date of the initial Advance hereunder,
the satisfaction of the conditions precedent set forth in Section 4.1
as well, from and including the date of this Agreement and prior to
the Facility Termination Date, the Swing Line Lender may, in its sole
discretion and on the other terms and conditions set forth in this
Agreement, make Swing Line Loans, in Dollars, to the Borrower from
time to time in an aggregate principal amount not to exceed the Swing
Line Limit, provided that the Aggregate Outstanding Credit Exposure
--------
shall not at any time exceed the Aggregate Commitment. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow
Swing Line Loans at any time prior to the Facility Termination Date.
(b) Discretionary Nature. Each Swing Line Loan by the
--------------------
Swing Line Lender to the Borrower shall be in the Swing Line Lender's
sole discretion, and the Swing Line Lender need not show that an
adverse change has occurred in the Borrower's condition,
financial or otherwise, or that any of the conditions of this
Section 2.2 or Article 4 or otherwise of this Agreement have not
been met, in order to refuse to make any requested Swing Line
Loan.
(c) Borrowing Notice. The Borrower shall deliver to the
----------------
Agent and the Swing Line Lender irrevocable notice (a "Swing Line
Borrowing Notice") not later than 11:00 a.m. (Chicago time) on
the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day),
and (ii) the aggregate amount of the requested Swing Line Loan
which shall be an amount not less than $1,000,000 and integral
multiples of $100,000 in excess thereof. The Swing Line Loans
shall bear interest at the Floating Rate.
(d) Making of Swing Line Loans. Promptly after receipt
--------------------------
of a Swing Line Borrowing Notice, the Agent shall notify each Lender
by fax, or other similar form of transmission, of the requested
Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Lender shall (if it has
determined in its sole discretion to make the requested Swing
Line Loan) make available the Swing Line Loan, in funds
immediately available in Chicago, to the Agent at its address
specified pursuant to Article 13. The Agent will promptly make
the funds so received from the Swing Line Lender available to the
Borrower on the Borrowing Date at the Agent's aforesaid address.
If the Swing Line Lender determines not to make a requested Swing
Line Loan, it will promptly notify the Borrower, the Agent and
the other Lenders of such determination.
(e) Repayment of Swing Line Loans. Each Swing Line Loan
-----------------------------
shall be paid in full by the Borrower on or before the seventh (7th)
Business Day after the Borrowing Date for such Swing Line Loan.
In addition, the Swing Line Lender (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan,
or (ii) shall on the seventh (7th) Business Day after the
Borrowing Date of any Swing Line Loan, require each Lender
(including the Swing Line Lender) to make a Revolving Loan in the
amount of such Lender's Pro Rata Share of such Swing Line Loan
(including, without limitation, any interest accrued and unpaid
thereon), for the purpose of repaying such Swing Line Loan. Not
later than 12:00 noon (Chicago time) on the date of any notice
received pursuant to this Section 2.2(e), each Lender shall make
available its required Revolving Loan, in funds immediately
available in Chicago to the Agent at its address specified
pursuant to Article 13. Revolving Loans made pursuant to this
Section 2.2(e) shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted
into Eurocurrency Loans in the manner provided in Section 2.10
and subject to the other conditions and limitations set forth in
this Article 2. Unless a Lender shall have notified the Swing
Line Lender, prior to its making any Swing Line Loan, that any
applicable condition precedent set forth in Sections 4.1 or 4.2
had not then been satisfied, such Lender's obligation to make
Revolving Loans pursuant to this Section 2.2(e) to repay Swing
Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances,
including, without limitation, (w) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against the Agent, the Swing Line Lender or any other Person, (x)
the occurrence or continuance of a Default or Unmatured Default,
(y) any adverse change in the condition (financial or otherwise)
of the Borrower, or (z) any other circumstances, happening or
event whatsoever. In the event that any Lender fails to make
payment to the Agent of any amount due under this Section 2.2(e),
the Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to
such Lender hereunder until the Agent receives such payment from
such Lender or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Lender fails to
make payment to the Agent of any amount due under this Section
2.2(e), such Lender shall be deemed, at the option of the Agent,
to have unconditionally and irrevocably purchased from the Swing
Line Lender, without recourse or warranty, an undivided interest
and participation in the applicable Swing Line Loan in the amount
of such Revolving Loan, and such interest and participation may
be recovered from such Lender together with interest thereon at
the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such
amount is received. On the Facility Termination Date, the
Borrower shall repay in full the outstanding principal balance of
the Swing Line Loans.
Section 2.3 Determination of Dollar Amounts; Required
-----------------------------------------
Payments; Termination. The Agent will determine the Dollar
- ---------------------
Amount of:
(a) each Credit Extension as of the
date three Business Days prior to (i) in the
case of an Advance, the Borrowing Date or, if
applicable, date of conversion/continuation
of such Advance, and (ii) in the case of a
Facility LC, the date for which the Borrower
has requested issuance of such Facility LC, and
(b) all outstanding Credit Extensions
on and as of the last Business Day of each
month and on any other Business Day elected
by the Agent in its discretion or upon
instruction by the Required Lenders.
Each day upon or as of which the Agent determines Dollar Amounts
as described in the preceding clauses (a) and (b) is herein
described as a "Computation Date" with respect to each Credit
Extension for which a Dollar Amount is determined on or as of
such day. If at any time the Dollar Amount of the Aggregate
Outstanding Credit Exposure (calculated, with respect to those
Credit Extensions denominated in Agreed Currencies other than
Dollars, as of the most recent Computation Date with respect to
each such Credit Extension) exceeds the Aggregate Commitment, the
Borrower shall immediately repay Advances in an aggregate
principal amount sufficient to eliminate any such excess.
The Aggregate Outstanding Credit Exposure and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
Section 2.4 Ratable Loans. Each Advance hereunder (other
-------------
than any Swing Line Loan) shall consist of Revolving Loans made from
the several Lenders ratably according to their Pro Rata Shares.
Section 2.5 Types of Advances. The Advances may be Revolving
-----------------
Loans consisting of Floating Rate Advances or Eurocurrency Advances,
or a combination thereof, selected by the Borrower in accordance with
Sections 2.9 and 2.10, or Swing Line Loans selected by the Borrower in
accordance with Section 2.2.
Section 2.6 Commitment Fee; Reductions in Aggregate
---------------------------------------
Commitment. The Borrower agrees to pay to the Agent for the account
- ----------
of each Lender according to its Pro Rata Share a commitment fee at
a per annum rate equal to the Applicable Fee Rate on the average
daily Available Aggregate Commitment from the date hereof to and
including the Facility Termination Date, payable on each Payment
Date hereafter and on the Facility Termination Date. Swing Line
Loans shall not count as usage of any Lender's Commitment for the
purpose of calculating the commitment fee due hereunder. The
Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples
of $10,000,000 (or the Approximate Equivalent Amount if
denominated in an Agreed Currency other than Dollars), upon at
least three Business Days' prior written notice to the Agent,
which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Commitment
- -------- -------
may not be reduced below the Aggregate Outstanding Credit
Exposure. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the
Lenders to make Credit Extensions hereunder. For purposes of
calculating the commitment fee hereunder, the principal amount of
each Credit Extension made in an Agreed Currency other than
Dollars shall be at any time the Dollar Amount of such Credit
Extension as determined on the most recent Computation Date with
respect to such Credit Extension.
Section 2.7 Minimum Amount of Each Advance. Each
------------------------------
Eurocurrency Advance shall be in a minimum amount of $5,000,000
and in multiples of $1,000,000 if in excess thereof (or the
Approximate Equivalent Amounts if denominated in an Agreed
Currency other than Dollars), and each Floating Rate Advance
(other than an Advance to repay Swing Line Loans) shall be in
the minimum amount of $5,000,000 and in multiples of $1,000,000
if in excess thereof, provided, however, that any Floating Rate
-----------------
Advance may be in the amount of the Available Aggregate Commitment.
Section 2.8 Optional Principal Payments. The Borrower may
---------------------------
from time to time pay, without penalty or premium, all outstanding
Floating Rate Advances (other than Swing Line Loans), or, in a
minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding
Floating Rate Advances upon one Business Day's prior notice to the
Agent. The Borrower may from time to time pay, subject to the
payment of any funding indemnification amounts required by Section
3.4 but without penalty or premium, all outstanding Eurocurrency
Advances, or, in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof (or the Approximate
Equivalent Amount if denominated in an Agreed Currency other than
Dollars), any portion of the outstanding Eurocurrency Advances upon
three Business Days' prior notice to the Agent. The Borrower may
from time to time pay, without penalty or premium, all outstanding
Swing Line Loans, or, in a minimum amount of $1,000,000 and
increments of $100,000 in excess thereof, any portion of the
outstanding Swing Line Loans, with notice to the Agent and the
Swing Line Lender by 12:00 noon (Chicago time) on the date of
repayment.
Section 2.9 Method of Selecting Types and Interest Periods
----------------------------------------------
for New Advances. Other than with respect to Swing Line Loans
- ----------------
(which shall be governed by Section 2.2), the Borrower shall select
the Type of Advance and, in the case of each Eurocurrency Advance,
the Interest Period and Agreed Currency applicable thereto from time
to time. The Borrower shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than 10:00 a.m. (Chicago time) at
least one Business Day before the Borrowing Date of each Floating
Rate Advance, three Business Days before the Borrowing Date for
each Eurocurrency Advance denominated in Dollars and three
Business Days before the Borrowing Date for each Eurocurrency
Advance denominated in an Agreed Currency other than Dollars,
specifying:
(a) the Borrowing Date, which shall be a Business Day,
of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected, and
(d) in the case of each Eurocurrency Advance, the Interest
Period and Agreed Currency applicable thereto.
Section 2.10 Conversion and Continuation of Outstanding
------------------------------------------
Advances. Floating Rate Advances (other than Swing Line Loans) shall
- --------
continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurocurrency Advances pursuant
to this Section 2.10 or are repaid in accordance with Section
2.8. Each Eurocurrency Advance shall continue as a Eurocurrency
Advance until the end of the then applicable Interest Period
therefor, at which time:
(a) each such Eurocurrency Advance denominated in Dollars
shall be automatically converted into a Floating Rate Advance unless
(x) such Eurocurrency Advance is or was repaid in accordance with
Section 2.8 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurocurrency
Advance either continue as a Eurocurrency Advance for the same or
another Interest Period or be converted into a Floating Rate
Advance; and
(b) each such Eurocurrency Advance denominated in an
Agreed Currency other than Dollars shall automatically continue as a
Eurocurrency Advance in the same Agreed Currency with an Interest
Period of one month unless (x) such Eurocurrency Advance is or
was repaid in accordance with Section 2.8 or (y) the Borrower
shall have given the Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest
Period, such Eurocurrency Advance continue as a Eurocurrency
Advance for the same or another Interest Period.
Subject to the terms of Section 2.7, the Borrower may elect from
time to time to convert all or any part of an Advance (other than
a Swing Line Loan) of any Type into any other Type or Types of
Advances denominated in the same or any other Agreed Currency;
provided that any conversion of any Eurocurrency Advance shall be
- --------
made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of an Advance or continuation of a Eurocurrency
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, three Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in Dollars, or
four Business Days in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in an Agreed
Currency other than Dollars, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business
Day, of such conversion or continuation, and
(ii) the Agreed Currency, amount and Type(s) of
Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or
continuation of a Eurocurrency Advance, the duration of
the Interest Period applicable thereto.
Section 2.11 Method of Borrowing. On each Borrowing Date,
-------------------
each Lender shall make available its Loan or Loans, if any, (i) if
such Loan is denominated in Dollars, not later than noon, Chicago
time, in Federal or other funds immediately available to the Agent,
in Chicago, Illinois at its address specified in or pursuant to
Article 13 and, (ii) if such Loan is denominated in an Agreed
Currency other than Dollars, not later than noon, local time, in
the city of the Agent's Eurocurrency Payment Office for such
currency, in such funds as may then be customary for the settlement
of international transactions in such currency in the city of and at
the address of the Agent's Eurocurrency Payment Office for such
currency. Unless the Agent determines that any applicable condition
specified in Article 4 has not been satisfied, the Agent will make
the funds so received from the Lenders available to the Borrower at
the Agent's aforesaid address. Notwithstanding the foregoing
provisions of this Section 2.11, to the extent that a Loan made by
a Lender matures on the Borrowing Date of a requested Loan, such
Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
Section 2.12 Changes in Interest Rate, etc. Each Floating
-----------------------------
Rate Advance (other than a Swing Line Loan) shall bear interest on
the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a
Eurocurrency Advance into a Floating Rate Advance pursuant to
Section 2.10 to but excluding the date it becomes due or is
converted into a Eurocurrency Advance pursuant to Section 2.10
hereof, at a rate per annum equal to the Floating Rate for such
day. Each Swing Line Loan shall bear interest on the outstanding
principal amount thereof, for each day from and including the day
such Swing Line Loan is made to but excluding the date it is paid,
at a rate per annum equal to the Floating Rate for such day or, if
the Swing Line Lender and the Borrower have agreed in writing that
such Swing Line Loan should bear interest at a different rate, such
rate. 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
Eurocurrency Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the
Agent as applicable to such Eurocurrency Advance based upon the
Borrower's selections under Sections 2.9 and 2.10 and otherwise
in accordance with the terms hereof. No Interest Period may end
after the Facility Termination Date.
Section 2.13 Rates Applicable After Default. Notwithstanding
------------------------------
anything to the contrary contained in Sections 2.9, 2.10 or 2.12,
during the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower (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 as a Eurocurrency Advance.
During the continuance of a Default the Required Lenders may, at their
option, by notice to the Borrower (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 (i) each Eurocurrency
Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum, (ii) each Floating Rate Advance shall
bear interest at a rate per annum equal to the Floating Rate in
effect from time to time plus 2% per annum and (iii) the LC Fee
shall be increased by 2% per annum, provided that, during the
--------
continuance of a Default under Section 7.7 or 7.8, the interest
rates set forth in clauses (i) and (ii) above and the increase in
the LC Fee set forth in clause (iii) above shall be applicable to
all Credit Extensions without any election or action on the part
of the Agent or any Lender.
Section 2.14 Method of Payment.
-----------------
(a) Each Advance shall be repaid and each payment of
interest thereon shall be paid in the currency in which such
Advance was made or, where such currency has converted to the
Euro, in the Euro. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at (except as set forth
in the next sentence) the Agent's address specified pursuant to
Article 13, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, shall be
initiated by 12:00 noon (local time) on the date when due and
shall (except (i) in the case of Reimbursement Obligations for
which the LC Issuer has not been fully indemnified by the Lenders,
or (ii) with respect to repayments of Swing Line Loans, or (iii) as
otherwise specifically required hereunder) be applied ratably by
the Agent among the Lenders. All payments to be made by the Borrower
hereunder in any currency other than Dollars shall be made in such
currency on the date due in such funds as may then be customary for
the settlement of international transactions in such currency for
the account of the Agent, at its Eurocurrency Payment Office for
such currency and shall be applied ratably by the Agent among the
Lenders. Each payment delivered to the Agent for the account of
any Lender shall be delivered promptly by the Agent to such Lender
in the same type of funds that the Agent received at, (x) with
respect to Floating Rate Loans and Eurocurrency Loans denominated
in Dollars, its address specified pursuant to Article 13 or at any
Lending Installation specified in a notice received by the Agent
from such Lender and (y) with respect to Eurocurrency Loans
denominated in an Agreed Currency other than Dollars, in the
funds received from the Borrower at the address of the Agent's
Eurocurrency Payment Office for such currency. The Agent is
hereby authorized to charge any account of the Borrower maintained
with Bank One or any of its Affiliates for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due
hereunder. Each reference to the Agent in this Section 2.14 shall
also be deemed to refer, and shall apply equally, to the LC Issuer,
in the case of payments required to be made by the Borrower to the
LC Issuer pursuant to Section 2.22(f).
(b) Notwithstanding the foregoing provisions of this
Section, if, after the making of any Advance in any currency other
than Dollars, currency control or exchange regulations are imposed
in the country which issues such currency with the result that the
type of currency in which the Advance was made (the "Original
Currency") no longer exists or the Borrower is not able to make
payment to the Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the Borrower
hereunder in such currency shall instead be made when due in
Dollars in an amount equal to the Dollar Amount (as of the date
of repayment) of such payment due, it being the intention of the
parties hereto that the Borrower take all risks of the imposition
of any such currency control or exchange regulations.
Section 2.15 Advances to Be Made in Euro. If any Advance to
---------------------------
be made would, but for the provisions of this Section 2.15, be capable
of being made in either the Euro or in a National Currency Unit, such
Advance shall be made in the Euro.
Section 2.16 Noteless Agreement; Evidence of Indebtedness.
--------------------------------------------
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(b) The Agent shall also maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period and selection of Agreed Currency
with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the original stated amount
of each Facility LC and the amount of LC Obligations outstanding
at any time, and (d) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (a) and (b) above shall be prima facie
----- -----
evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Agent or any
-------- -------
Lender to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced
by a promissory note or, in the case of the Swing Line Lender,
promissory notes representing its Revolving Loans and Swing Line
Loans, respectively, substantially in the form of Exhibit E,
with appropriate changes for notes evidencing Swing Line Loans
(each, a "Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender such Note or Notes payable to
the order of such Lender. Thereafter, the Loans evidenced by
each such Note and interest thereon shall at all times (including
after any assignment pursuant to Section 12.3) be represented by
one or more Notes payable to the order of the payee named therein
or any assignee pursuant to Section 12.3, except to the extent
that any such Lender or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again be
evidenced as described in paragraphs (a) and (b) above.
Section 2.17 Telephonic Notices. The Borrower hereby
------------------
authorizes the Lenders and the Agent to extend, convert or continue
Advances, effect selections of Agreed Currencies and Types of Advances
and to transfer funds based on telephonic notices made by any person
or persons the Agent or any Lender in good faith believes to be acting
on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The
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.
Section 2.18 Interest Payment Dates; Interest and Fee Basis.
----------------------------------------------
Interest accrued on each Floating Rate Advance shall be payable
on each Payment Date, commencing with the first such date to
occur after the date hereof, on any date on which the Floating
Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of
the outstanding principal amount of any Floating Rate Advance
converted into a Eurocurrency Advance on a day other than a
Payment Date shall be payable on the date of conversion.
Interest accrued on each Eurocurrency Advance shall be payable on
the last day of its applicable Interest Period, on any date on
which the Eurocurrency Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on
each Eurocurrency Advance having an Interest Period longer than
three months shall also be payable on the last day of each three-
month interval during such Interest Period. Interest on
Eurocurrency Advances (other than Eurocurrency Advances
denominated in British Pounds Sterling), commitment fees and LC
Fees shall be calculated for actual days elapsed on the basis of
a 360-day year; interest on Floating Rate Advances and
Eurocurrency Advances denominated in British Pounds Sterling
shall be calculated for actual days elapsed on the basis of a
365/366-day year. 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 initiated prior to 12:00 noon (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, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of
time shall be included in computing interest in connection with
such payment.
Section 2.19 Notification of Advances, Interest Rates,
-----------------------------------------
Prepayments and Commitment Reductions. Promptly after receipt
- -------------------------------------
thereof, the Agent will notify each Lender of the contents of each
Aggregate Commitment reduction notice, Borrowing Notice, Swing Line
Borrowing Notice, Conversion/Continuation Notice, and repayment
notice received by it hereunder. Promptly after notice from the
LC Issuer, the Agent will notify each Lender of the contents of
each request for issuance of a Facility LC hereunder. The Agent
will notify each Lender of the interest rate applicable to each
Eurocurrency Advance promptly upon determination of such interest
rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
Section 2.20 Lending Installations. Each Lender will book
---------------------
its Loans and its participation in any LC Obligations and the LC
Issuer will book the Facility LCs at the appropriate Lending
Installation listed on Schedule 2 or such other Lending Installation
----------
designated by such Lender or LC Issuer in accordance with the final
sentence of this Section 2.20. All terms of this Agreement shall
apply to any such Lending Installation and the Loans, Facility LCs,
participations in LC Obligations and any Notes issued hereunder
shall be deemed held by each Lender or the LC Issuer, as the case
may be, for the benefit of any such Lending Installation. Each
Lender and the LC Issuer may, by written notice to the Agent and
the Borrower in accordance with Article 13, designate replacement
or additional Lending Installations through which Loans will be
made by it or Facility LCs will be issued by it and for whose
account Loan payments or payments with respect to Facility LCs
are to be made.
Section 2.21 Non-Receipt of Funds by the Agent. Unless the
---------------------------------
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 (i) in the case of a Lender, the proceeds of a Loan or (ii) in
the case of the Borrower, a payment of principal, interest or fees
to the Agent for the account of the Lenders, that it does not intend
to make such payment, the Agent may assume that such payment has
been made. The Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the 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 (x) in
the case of payment by a Lender, the Federal Funds Effective Rate
for such day for the first three days and, thereafter, the interest
rate applicable to the relevant Loan or (y) in the case of payment
by the Borrower, the interest rate applicable to the relevant Loan.
Section 2.22 Facility LCs.
------------
(a) Issuance. The LC Issuer hereby agrees, on the terms
--------
and conditions set forth in this Agreement, to issue standby and
commercial Letters of Credit in Agreed Currencies (each, a
"Facility LC") and to renew, extend, increase, decrease or
otherwise modify each Facility LC ("Modify," and each such action
a "Modification"), from time to time from and including the date
of this Agreement and prior to the Facility Termination Date upon
the request of the Borrower; provided that immediately after each
--------
such Facility LC is issued or Modified, (i) the aggregate amount
of the outstanding LC Obligations shall not exceed $25,000,000
and (ii) the Aggregate Outstanding Credit Exposure shall not
exceed the Aggregate Commitment. No Facility LC shall have an
expiry date later than the earlier of (x) the fifth Business Day
prior to the Facility Termination Date and (y) one year after its
issuance; provided that any Facility LC with an expiry date one
--------
year after its issuance may provide for renewal for additional
one-year periods (which shall in no event extend beyond the date
referred to in clause (x) above).
(b) Participations. Upon the issuance or Modification
--------------
by the LC Issuer of a Facility LC in accordance with this Section
2.22, the LC Issuer shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably sold to each
Lender, and each Lender shall be deemed, without further action
by any party hereto, to have unconditionally and irrevocably
purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in
proportion to its Pro Rata Share.
(c) Notice. Subject to Section 2.22(a), the Borrower
------
shall give the LC Issuer notice prior to 10:00 a.m. (Chicago time)
at least five Business Days prior to the proposed date of issuance
or Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date
of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be
supported thereby. Upon receipt of such notice, the LC Issuer
shall promptly notify the Agent, and the Agent shall promptly
notify each Lender, of the contents thereof and of the amount of
such Lender's participation in such proposed Facility LC. The
issuance or Modification by the LC Issuer of any Facility LC
shall, in addition to the conditions precedent set forth in
Article 4 (the satisfaction of which the LC Issuer shall have no
duty to ascertain), be subject to the conditions precedent that
such Facility LC shall be satisfactory to the LC Issuer and that
the Borrower shall have executed and delivered such application
agreement and/or such other instruments and agreements relating
to such Facility LC as the LC Issuer shall have reasonably
requested (each, a "Facility LC Application"). In the event of
any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall
control.
(d) LC Fees. The Borrower shall pay to the Agent, for
-------
the account of the Lenders ratably in accordance with their
respective Pro Rata Shares, (i) with respect to each standby
Facility LC, a letter of credit fee at a per annum rate equal to
the Applicable Fee Rate for standby Facility LCs in effect from
time to time on the average daily undrawn stated amount under
such standby Facility LC, such fee to be payable in arrears on
each Payment Date, and (ii) with respect to each commercial
Facility LC, a letter of credit fee at a per annum rate equal to
the Applicable Fee Rate for commercial Facility LCs in effect
from time to time on the average daily undrawn stated amount
under such commercial Facility LC, such fee to be payable in
arrears on each Payment Date (each such fee described in this
sentence an "LC Fee"). The Borrower shall also pay to the LC
Issuer for its own account (x) at the time of issuance of each
Facility LC, a fronting fee in an amount equal to 0.125% of the
initial stated amount thereof, such fee to be payable on the date
of such issuance, and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under
Facility LCs in accordance with the LC Issuer's standard schedule
for such charges as in effect from time to time.
(e) Administration; Reimbursement by Lenders. Upon
----------------------------------------
receipt from the beneficiary of any Facility LC of any demand for
payment under such Facility LC, the LC Issuer shall notify the
Agent and the Agent shall promptly notify the Borrower and each
other Lender as to the amount to be paid by the LC Issuer as a result
of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the LC Issuer to the Borrower and
each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility
LC in connection with such presentment shall be in conformity in
all material respects with such Facility LC. The LC Issuer shall
endeavor to exercise the same care in the issuance and
administration of the Facility LCs as it does with respect to
Letters of Credit in which no participations are granted, it
being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the
occurrence of any Default or any condition precedent whatsoever,
to reimburse the LC Issuer on demand for (i) such Lender's Pro
Rata Share of the amount of each payment made by the LC Issuer
under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.22(f) below,
plus (ii) interest on the foregoing amount to be reimbursed by
such Lender, for each day from the date of the LC Issuer's demand
for such reimbursement (or, if such demand is made after 11:00
a.m. (Chicago time) on such date, from the next succeeding
Business Day) to the date on which such Lender pays the amount to
be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Effective Rate for the first three days and,
thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
(f) Reimbursement by Borrower.
-------------------------
(i) The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on
or before the applicable LC Payment Date for any amounts
to be paid by the LC Issuer upon any drawing under any
Facility LC, without presentment, demand, protest or
other formalities of any kind; provided that neither the
--------
Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential)
damages suffered by the Borrower or such Lender to the
extent, but only to the extent, caused by (A) the
willful misconduct or gross negligence of the LC Issuer
in determining whether a request presented under any
Facility LC issued by it complied with the terms of
such Facility LC or (B) the LC Issuer's failure to pay
under any Facility LC issued by it after the
presentation to it of a request strictly complying
with the terms and conditions of such Facility LC.
(ii) If the Borrower at any time fails to repay
a Reimbursement Obligation on or before the applicable
LC Payment Date, such unpaid Reimbursement Obligation
shall at that time be automatically converted into an
obligation denominated in Dollars and the Borrower
shall be deemed to have elected to borrow Revolving
Loans from the Lenders, as of the date of the advance
giving rise to the Reimbursement Obligation, equal
in amount to the Dollar Amount of the unpaid
Reimbursement Obligation. Such Revolving Loans
shall be made as of the date of the payment giving
rise to such Reimbursement Obligation, automatically,
without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an
Advance of Revolving Loans. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement
Obligation. If, for any reason, the Borrower fails to
repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation
to make Revolving Loans, then such Reimbursement
Obligation shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to
the sum of two percent (2%) per annum plus the rate
applicable to Floating Rate Advances for such day
(or, in the case of a Reimbursement Obligation
denominated in an Agreed Currency other than Dollars,
at the rate determined by the LC Issuer in good faith
to represent the LC Issuer's cost of overnight or
short-term funds in the applicable Agreed Currency
plus the then effective Applicable Margin for
Eurocurrency Advances). The Borrower agrees to
indemnify the LC Issuer against any loss or expense
determined by the LC Issuer in good faith to have
resulted from any conversion pursuant to this
Section 2.22(f)(ii) by reason of the inability
of the LC Issuer to convert the Dollar Amount
received from the Borrower or from the Lenders,
as applicable, into an amount in the applicable
Agreed Currency of such Facility LC equal to the
amount of such Reimbursement Obligation.
(iii) The LC Issuer will pay to each Lender
ratably in accordance with its Pro Rata Share all
amounts received by it from the Borrower for
application in payment, in whole or in part, of
the Reimbursement Obligation in respect of any
Facility LC issued by the LC Issuer, but only to
the extent such Lender has made payment to the LC
Issuer in respect of such Facility LC pursuant to
Section 2.22(e).
(g) Obligations Absolute. The Borrower's obligations
--------------------
under this Section 2.22 shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counter-
claim or defense to payment which the Borrower may have or have had
against the LC Issuer, any Lender or any beneficiary of a
Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be
responsible for, and the Borrower's Reimbursement Obligation in
respect of any Facility LC shall not be affected by, among other
things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove
to be in any or all respects invalid, fraudulent or forged, or
any dispute between or among the Borrower, any of its Affiliates,
the beneficiary of any Facility LC or any financing institution
or other party to whom any Facility LC may be transferred or any
claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in
connection with any Facility LC. The Borrower agrees that any
action taken or omitted by the LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and
documents, if done without gross negligence or willful
misconduct, shall be binding upon the Borrower and shall not put
the LC Issuer or any Lender under any liability to the Borrower.
Nothing in this Section 2.22(g) is intended to limit the right of
the Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section
2.22(f)(i).
(h) Actions of LC Issuer. The LC Issuer shall be
--------------------
entitled to rely, and shall be fully protected in relying, upon
any Facility LC, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document
believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants
and other experts selected by the LC Issuer. The LC Issuer shall
be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems
appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other
provision of this Section 2.22, the LC Issuer shall in all cases
be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
(i) Indemnification. The Borrower hereby agrees to
---------------
indemnify and hold harmless each Lender, the LC Issuer and the
Agent, and their respective directors, officers, agents and
employees from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender, the LC Issuer or
the Agent may incur (or which may be claimed against such Lender,
the LC Issuer or the Agent by any Person whatsoever) by reason of
or in connection with the issuance, execution and delivery or
transfer of or payment or failure to pay under any Facility LC or
any actual or proposed use of any Facility LC, including, without
limitation, any claims, damages, losses, liabilities, costs or
expenses which the LC Issuer may incur by reason of or in
connection with (i) the failure of any other Lender to fulfill or
comply with its obligations to the LC Issuer hereunder (but
nothing herein contained shall affect any rights the Borrower may
have against any defaulting Lender) or (ii) by reason of or on
account of the LC Issuer issuing any Facility LC which specifies
that the term "Beneficiary" included therein includes any
successor by operation of law of the named Beneficiary, but which
Facility LC does not require that any drawing by any such
successor Beneficiary be accompanied by a copy of a legal
document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the
--------
Borrower shall not be required to indemnify any Lender, the LC
Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused
by (x) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any
Facility LC complied with the terms of such Facility LC or (y)
the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms
and conditions of such Facility LC. Nothing in this Section
2.22(i) is intended to limit the obligations of the Borrower
under any other provision of this Agreement.
(j) Lenders' Indemnification. Each Lender shall,
------------------------
ratably in accordance with its Pro Rata Share, indemnify the
LC Issuer, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross
negligence or willful misconduct or the LC Issuer's failure to
pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of
the Facility LC) that such indemnitees may suffer or incur in
connection with this Section 2.22 or any action taken or omitted
by such indemnitees hereunder.
(k) Facility LC Collateral Account. The Borrower
------------------------------
agrees that it will, upon the request of the Agent or the
Required Lenders and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to
the LC Issuer or the Lenders in respect of any Facility LC,
maintain a special collateral account pursuant to arrangements
satisfactory to the Agent (the "Facility LC Collateral Account")
at the Agent's office at the address specified pursuant to
Article 13, in the name of the Borrower but under the sole
dominion and control of the Agent, for the benefit of the
Lenders and in which the Borrower shall have no interest other
than as set forth in Section 8.1. The Borrower hereby pledges,
assigns and grants to the Agent, on behalf of and for the
ratable benefit of the Lenders and the LC Issuer, a security
interest in all of the Borrower's right, title and interest
in and to all funds which may from time to time be on deposit
in the Facility LC Collateral Account to secure the prompt and
complete payment and performance of the Obligations. The Agent
will invest any funds on deposit from time to time in the
Facility LC Collateral Account in certificates of deposit of
Bank One having a maturity not exceeding 30 days. Nothing in
this Section 2.22(k) shall either obligate the Agent to require
the Borrower to deposit any funds in the Facility LC Collateral
Account or limit the right of the Agent to release any funds held
in the Facility LC Collateral Account in each case other than as
required by Section 8.1.
(l) Rights as a Lender. In its capacity as a Lender,
------------------
the LC Issuer shall have the same rights and obligations as any
other Lender.
Section 2.23 Market Disruption. Notwithstanding the
-----------------
satisfaction of all conditions referred to in Article 2 and
Article 4 with respect to any Credit Extension in any Agreed
Currency other than Dollars, if there shall occur on or prior to
the date of such Credit Extension 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, the Required Lenders and,
if the requested Credit Extension is to be a Facility LC, the LC
Issuer, make it impracticable for the Loans or Facility LC
comprising such Credit Extension to be denominated in the Agreed
Currency specified by the Borrower, then the Agent shall forthwith
give notice thereof to the Borrower, the Lenders, and, if the
requested Credit Extension is to be a Facility LC, the LC Issuer,
and such Loans or Facility LC shall not be denominated in such
Agreed Currency but shall, in the case of Loans, be made on such
Borrowing Date in Dollars, in an aggregate principal amount equal
to the Dollar Amount of the aggregate principal amount specified
in the related Borrowing Notice or Conversion/Continuation Notice,
as the case may be, as Floating Rate Loans, or, in the case of a
Facility LC, be issued in Dollars, in a face amount equal to the
Dollar Amount of the face amount specified in the related notice
of a request for issuance of such Facility LC received from the
Company, unless in either case the Borrower notifies the Agent at
least one Business Day before the Borrowing Date or date of
issuance of such Facility LC that (i) it elects not to obtain
such Credit Extension on such date or (ii) it elects to obtain
such Credit Extension on such date in a different Agreed Currency,
as the case may be, in which the denomination of such Credit
Extension would in the opinion of the Agent, the Required Lenders
and, if the requested Credit Extension is to be a Facility LC, the
LC Issuer, be practicable and in an aggregate principal amount
equal to the Dollar Amount of the aggregate principal amount
specified in the related Borrowing Notice, Conversion/Continuation
Notice or notice of a request for issuance of a Facility LC, as the
case may be.
Section 2.24 Judgment Currency. If for the purposes of
-----------------
obtaining judgment in any court it is necessary to convert a sum
due from the Borrower hereunder in the currency expressed to be
payable herein (the "specified currency") into another currency,
the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Agent
could purchase the specified currency with such other currency
at the Agent's main Chicago office on the Business Day preceding
that on which final, non-appealable judgment is given. The
obligations of the Borrower in respect of any sum due to any
Lender, the LC Issuer or the Agent hereunder shall, notwithstanding
any judgment in a currency other than the specified currency, be
discharged only to the extent that on the Business Day following
receipt by such Lender, the LC Issuer or the Agent (as the case
may be) of any sum adjudged to be so due in such other currency
such Lender, the LC Issuer or the Agent (as the case may be) may
in accordance with normal, reasonable banking procedures purchase
the specified currency with such other currency. If the amount of
the specified currency so purchased is less than the sum originally
due to such Lender, the LC Issuer or the Agent, as the case may
be, in the specified currency, the Borrower agrees, to the
fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify
such Lender, the LC Issuer or the Agent, as the case may be,
against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Lender, the
LC Issuer or the Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate
payment to such Lender under Section 11.2, such Lender, the LC
Issuer or the Agent, as the case may be, agrees to remit such
excess to the Borrower.
Section 2.25 Replacement of Lender. If the Borrower is
---------------------
required pursuant to Section 3.1, 3.2 or 3.5 to make any additional
payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurocurrency
Advances shall be suspended pursuant to Section 3.3 (any Lender so
affected an "Affected Lender"), the Borrower may elect, if such
amounts continue to be charged or such suspension is still
effective, to replace such Affected Lender as a Lender party to
this Agreement, provided that no Default or Unmatured Default shall
--------
have occurred and be continuing at the time of such replacement,
and provided further that, concurrently with such replacement,
-------- ------------
(i) another bank or other entity which is reasonably satisfactory
to the Borrower and the Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the
Affected Lender pursuant to an assignment substantially in the
form of Exhibit C and to become a Lender for all purposes under
this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and
(ii) the Borrower shall pay to such Affected Lender in same day
funds on the day of such replacement (A) all interest, fees and
other amounts then accrued but unpaid to such Affected Lender by
the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal
to the payment which would have been due to such Lender on the day
of such replacement under Section 3.4 had the Loans of such Affected
Lender been prepaid on such date rather than sold to the replacement
Lender.
Section 2.26 Increase of Aggregate Commitment.
--------------------------------
(a) The Borrower may from time to time, on the terms set
forth below, request that the Aggregate Commitment hereunder be
increased to an amount not to exceed $200,000,000; provided,
--------
however, that no increase in the Aggregate Commitment shall be
- -------
made (i) at a time when a Default or Unmatured Default shall have
occurred and be continuing, or (ii) at any time after the
Aggregate Commitment has been reduced.
(b) In the event of such a requested increase in the
Aggregate Commitment, then the Borrower shall consult with the Agent
and the Arranger as to the number, identity and requested Commitments
of financial institutions (which may or may not then be Lenders)
which the Arranger may invite to participate in the Commitments.
(c) No Lender shall have any obligation to increase its
Commitment pursuant to a request by the Borrower hereunder.
(d) In the event that the Borrower and one or more of the
Lenders (or other financial institutions) shall agree upon such
an increase in the aggregate Commitment (i) the Borrower, the
Agent and each Lender or other financial institution increasing
its Commitment or extending a new Commitment shall enter into an
amendment to this Agreement setting forth the amounts of the
Commitments, as so increased, providing that the financial
institutions extending new Commitments shall be Lenders for all
purposes of this Agreement, and setting forth such additional
provisions as the Agent shall consider reasonably appropriate and
(ii) the Borrower shall furnish, if requested, a new Note to each
financial institution that is extending a new Commitment or
increasing its Commitment. No such amendment shall require the
approval or consent of any Lender whose Commitment is not being
increased. Upon the execution and delivery of such amendment as
provided above, and upon satisfaction of such other condition as
the Agent may reasonably specify upon the request of the
financial institutions that are increasing or extending new
Commitments (including, without limitation, the Agent
administering the reallocation of any outstanding Loans ratably
among the Lenders after giving effect to such increase in the
Aggregate Commitment, the delivery of certificates, evidence of
corporate authority and legal opinions on behalf of the
Borrower), this Agreement shall be deemed to be amended
accordingly.
ARTICLE 3
YIELD PROTECTION; TAXES
Section 3.1 Yield Protection. (a) If, on or after the
----------------
date of this Agreement, the adoption of any law or any governmental
or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental
or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Lender or applicable Lending Installation or
the LC Issuer with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes
the basis of taxation of payments (other than with respect
to Excluded Taxes) to any Lender or the LC Issuer in
respect of its Eurocurrency Loans, Facility LCs or
participations therein, or
(ii) 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 or the LC Issuer
(other than reserves and assessments taken into account
in determining the interest rate applicable to
Eurocurrency Advances), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any
applicable Lending Installation or the LC Issuer of
making, funding or maintaining its Eurocurrency Loans
(including, without limitation, any conversion of any
Loan denominated in an Agreed Currency other than Euro
into a Loan denominated in Euro), or of issuing or
participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending
Installation or the LC Issuer in connection with its
Eurocurrency Loans, Facility LCs or participations
therein, or requires any Lender or any applicable
Lending Installation or the LC Issuer to make any
payment calculated by reference to the amount of
Eurocurrency Loans, Facility LCs or participations
therein held or interest or LC Fees received by it,
by an amount deemed material by such Lender or the
LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to
such Lender or applicable Lending Installation or the LC Issuer,
as the case may be, of making or maintaining its Eurocurrency
Loans (including, without limitation, any conversion of any Loan
denominated in an Agreed Currency other than Euro into a Loan
denominated in Euro) or Commitment or of issuing or participating
in Facility LCs, or to reduce the return received by such Lender or
applicable Lending Installation or the LC Issuer, as the case may be,
in connection with such Eurocurrency Loans, Commitment or Facility LCs
or participations therein, then, within 15 days of demand by such
Lender or the LC Issuer, as the case may be, the Borrower shall pay
such Lender or the LC Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
(b) Non-U.S. Reserve Costs or Fees. If any law or any
------------------------------
governmental or quasi-governmental rule, regulation, policy,
guideline or directive of any jurisdiction outside of the United
States of America or any subdivision thereof (whether or not
having the force of law), imposes or deems applicable any reserve
requirement against or fee with respect to assets of, deposits
with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation, or the LC Issuer, and the
result of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, of making or
maintaining its Eurocurrency Loans to, or of issuing or
participating in Facility LCs upon the request of, or of making
or maintaining its Commitment to, the Borrower or to reduce the
return received by such Lender or applicable Lending Installation
or the LC Issuer in connection with such Eurocurrency Loans,
Facility LCs or Commitment, then, within 15 days of demand by
such Lender or the LC Issuer, as the case may be, the Borrower
shall pay such Lender or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate it for such
increased cost or reduction in amount received, provided that the
--------
Borrower shall not be required to compensate any Lender for such
non-U.S. reserve costs or fees to the extent that an amount equal
to such reserve costs or fees is received by such Lender as a
result of the calculation of the interest rate applicable to
Eurocurrency Advances pursuant to clause (i)(b) of the definition
of "Eurocurrency Rate."
Section 3.2 Changes in Capital Adequacy Regulations. If a
---------------------------------------
Lender or the LC Issuer determines the amount of capital required
or expected to be maintained by such Lender or the LC Issuer, any
Lending Installation of such Lender or the LC Issuer or any
corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such
Lender or the LC Issuer, the Borrower shall pay such Lender or
the LC Issuer the amount necessary to compensate for any shortfall
in the rate of return on the portion of such increased capital
which such Lender or the LC Issuer determines is attributable to
this Agreement, its Outstanding Credit Exposure or its Commitment
to make Loans and issue or participate in Facility LCs, as the
case may be, hereunder (after taking into account such Lender's
or the LC Issuer's policies as to capital adequacy). "Change"
means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) 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 which affects the amount of capital required or expected
to be maintained by any Lender or the LC Issuer or any Lending
Installation or any corporation controlling any Lender or the LC
Issuer. "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.
Section 3.3 Availability of Types of Advances. If any
---------------------------------
Lender determines that maintenance of its Eurocurrency Loans at
a suitable Lending Installation would violate any applicable law,
rule, regulation, or directive, whether or not having the force
of law, or if the Required Lenders determine that (i) deposits
of a type, currency and maturity appropriate to match fund
Eurocurrency Advances are not available or (ii) the interest
rate applicable to Eurocurrency Advances does not accurately
reflect the cost of making or maintaining Eurocurrency Advances,
then the Agent shall suspend the availability of Eurocurrency
Advances and require any affected Eurocurrency Advances to be
repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by
Section 3.4.
Section 3.4 Funding Indemnification. If any payment of
-----------------------
a Eurocurrency Advance occurs on a date which is not the last
day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurocurrency Advance
is not made on the date specified by the Borrower for any reason
other than default by the Lenders, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain
such Eurocurrency Advance.
Section 3.5 Taxes.
-----
(a) All payments by the Borrower to or for the account
of any Lender, the LC Issuer or the Agent hereunder or under any
Note or Facility LC Application shall be made free and clear of and
without deduction for any and all Taxes. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender, the LC Issuer or the Agent,
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 3.5) such Lender,
the LC Issuer or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted
to the relevant authority in accordance with applicable law and
(iv) the Borrower shall furnish to the Agent the original copy of
a receipt evidencing payment thereof within 30 days after such
payment is made.
(b) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or Facility LC
Application or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note or Facility LC
Application ("Other Taxes").
(c) The Borrower hereby agrees to indemnify the Agent,
the LC Issuer and each Lender for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Agent, the LC Issuer or such Lender as a result of its
Commitment, any Credit Extension made by it hereunder, or
otherwise in connection with its participation in this Agreement
and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Payments due under
this indemnification shall be made within 30 days of the date the
Agent, the LC Issuer or such Lender makes demand therefor
pursuant to Section 3.6.
(d) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof (each a
"Non-U.S. Lender") agrees that it will, not more than ten Business
Days after the date of this Agreement, (i) deliver to the Agent two
duly completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI, certifying in either case that such Lender
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, and (ii) deliver to the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it
is entitled to an exemption from United States backup withholding
tax. Each Non-U.S. Lender further undertakes to deliver to each
of the Borrower and the Agent (x) renewals or additional copies
of such form (or any successor form) on or before the date that
such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent
forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the
Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes, unless an event
------
(including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect
to it and such Lender advises the Borrower and the Agent that it
is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(e) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant
to clause (iv), above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the United States; provided that, should a Non-U.S.
--------
Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(f) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(g) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country
or any political subdivision thereof asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to
notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be
employees of the Agent). The obligations of the Lenders under
this Section 3.5(g) shall survive the payment of the Obligations
and termination of this Agreement.
Section 3.6 Lender Statements; Survival of Indemnity. To
----------------------------------------
the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurocurrency
Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurocurrency Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to
the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower
in the absence of manifest error. Determination of amounts
payable under such Sections in connection with a Eurocurrency
Loan shall be calculated as though each Lender funded its
Eurocurrency Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a
reference in determining the Eurocurrency Rate applicable to such
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
Borrower of such written statement. The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.1 Initial Credit Extension. The Lenders shall not
------------------------
be required to make the initial Credit Extension hereunder unless:
(a) the Borrower has furnished to the Agent the following,
each in form and substance satisfactory to the Lenders and with
sufficient copies for the Lenders:
(i) Copies of the articles or certificate of
incorporation of the Borrower, together with all
amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in
its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or
Assistant Secretary of the Borrower, of its by-laws
and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing
the execution of the Loan Documents to which the
Borrower is a party.
(iii) An incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower, which
shall identify by name and title and bear the signatures
of the Authorized Officers and any other officers of the
Borrower authorized to sign the Loan Documents to which
the Borrower is a party, upon which certificate the Agent,
the LC Issuer and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.
(iv) Copies of the articles or certificate of
incorporation of each Guarantor, together with all
amendments, and a certificate of good standing,
certified by the appropriate governmental officer in
its jurisdiction of incorporation.
(v) Copies, certified by the Secretary or Assistant
Secretary of each Guarantor, of its by-laws and of its
Board of Directors' resolutions and of resolutions or
actions of any other body authorizing the execution of
the Loan Documents to which such Guarantor is a party.
(vi) An incumbency certificate, executed by the
Secretary or Assistant Secretary of each Guarantor,
which shall identify by name and title and bear the
signatures of the Authorized Officers and any other
officers of such Guarantor authorized to sign the
Loan Documents to which such Guarantor is a party,
upon which certificate the Agent, the LC Issuer and
the Lenders shall be entitled to rely until informed
of any change in writing by such Guarantor.
(vii) A certificate, signed by an Authorized Officer
of the Borrower, stating that on the initial Credit
Extension Date no Default or Unmatured Default has
occurred and is continuing.
(viii) A written opinion of the Borrower's and the
Guarantors' counsel, addressed to the Agent, the Lenders
and the LC Issuer in substantially the form of Exhibit A.
(ix) Any Notes requested by a Lender pursuant to
Section 2.16 payable to the order of each such requesting
Lender.
(x) Written money transfer instructions, in
substantially the form of Exhibit D, addressed to the
Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the
Agent may have reasonably requested.
(xi) A Guaranty executed by each Specified Domestic
Subsidiary.
(xii) One or more Foreign Subsidiary Pledge Agreements
executed by the Borrower and by each Domestic Subsidiary
that holds shares in a Material Foreign Subsidiary, along
with all certificates evidencing the shares pledged thereby
duly endorsed or accompanied by executed stock powers and
accompanied by such other documents, financing statements,
opinions and information as the Agent or the Collateral
Agent may require to assure the Collateral Agent's valid
first priority Lien in the shares pledged thereby, free
and clear of all other Liens (except as may be permitted
in such Foreign Subsidiary Pledge Agreements).
(xiii) Evidence satisfactory to the Agent that (A) the
Credit Agreement dated as of September 23, 1997, as from
time to time in effect, by and between the Borrower and
Wachovia Bank, N.A., and (B) the Credit Agreement dated
as of January 13, 2000, as from time to time in effect,
by and between the Borrower and Bank One, shall have been
or shall simultaneously on the date of closing of this
Agreement be terminated (except for those provisions that
expressly survive the termination thereof) and all loans
outstanding and other amounts owed to the lenders or agents
thereunder shall have been or shall simultaneously with the
initial Credit Extension hereunder be paid in full.
(xiv) A consent under or agreement amending the Note
Purchase Agreement such that the Credit Extensions and the
pledge of shares in the Material Foreign Subsidiaries do
not result in a breach of the Note Purchase Agreement,
executed by the lenders under the Note Purchase Agreement.
(xv) The Intercreditor Agreement executed by each
party thereto.
(xvi) Such other documents as any Lender or its
counsel may have reasonably requested.
(b) Reserved.
Section 4.2 Each Credit Extension. The Lenders shall not
---------------------
(except as otherwise set forth in Section 2.2(e) with respect to
Revolving Loans for the purpose of repaying Swing Line Loans) be
required to make any Credit Extension unless on the applicable Credit
Extension Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article 5
are true and correct as of such Credit Extension Date except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, in which case such representation or warranty shall
have been true and correct on and as of such earlier date.
(c) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or request for issuance of a Facility
LC, or Swing Line Borrowing Notice, as the case may be, with respect
to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections
4.2(a) and (b) have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form of
Exhibit B as a condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
Section 5.1 Corporate Existence and Power. The Borrower is
-----------------------------
a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, is duly
qualified to transact business in every jurisdiction where, by the
nature of its business, such qualification is necessary, and has all
corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
Section 5.2 Authorization. The execution, delivery and
-------------
performance by the Borrower and the Guarantors of the Loan Documents
to which they are party (a) are within the Borrower's and the
Guarantors' corporate powers and (b) have been duly authorized by all
necessary corporate action.
Section 5.3 Binding Effect. This Agreement constitutes a
--------------
valid and binding agreement of the Borrower enforceable in accordance
with its terms, and each other Loan Document, when executed and
delivered in accordance with this Agreement, will constitute a valid
and binding obligation of each of the Borrower and the Guarantors
that is a party to such Loan Document, enforceable in accordance
with such Loan Document's terms, provided that the enforceability
--------
hereof and thereof is subject in each case to general principles of
equity and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally.
Section 5.4 No Conflict; Government Consent. Neither the
-------------------------------
execution and delivery by each of the Borrower and the Guarantors
of the Loan Documents to which it is a party, nor the consummation
of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (a) any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the
Borrower or any of its Subsidiaries or (b) the Borrower's or any
Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as
the case may be, or (c) the provisions of any indenture, instrument
or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been
obtained by the Borrower or any of its Subsidiaries, is required
to be obtained by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents,
the borrowings under this Agreement, the payment and performance
by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
Section 5.5 Financial Statements; Material Adverse Change.
---------------------------------------------
(a) The consolidated financial statements of the Borrower
and its Subsidiaries as of March 31, 2001 reported on by
PricewaterhouseCoopers LLP and the unaudited consolidated
financial statements of the Borrower and its Subsidiaries as of
December 26, 2001, each 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 the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then
ended.
(b) Since December 26, 2001, there has been no change
in the business, Property, prospects condition (financial or
otherwise) or results of operations of the Borrower and its
Subsidiaries that could reasonably be expected to have a Material
Adverse Effect.
Section 5.6 Litigation and Contingent Obligations.
-------------------------------------
Except as disclosed in Schedule 5.6, there is no litigation,
------------
arbitration, governmental investigation, proceeding or inquiry
pending, or to the knowledge of any of their officers, threatened
against or affecting the Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of
any Credit Extensions. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably
be expected to have a Material Adverse Effect, the Borrower has
no material Contingent Obligations not provided for or disclosed
in the financial statements referred to in Section 5.5.
Section 5.7 Compliance with ERISA.
---------------------
(a) The Borrower and each member of the Controlled Group
(excluding Foreign Subsidiaries of the Borrower) have fulfilled
their obligations under the minimum funding standards of ERISA
and the Code with respect to each Plan and are in compliance in
all material respects with the presently applicable provisions of
ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
(b) Each Plan complies in all material respects with
all applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the Borrower
nor any other member of the Controlled Group has withdrawn from
any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan.
(c) Neither the Borrower nor any member of the
Controlled Group (excluding Foreign Subsidiaries of the Borrower)
is or ever has been obligated to contribute to any Multiemployer
Plan.
(d) Each Foreign Subsidiary of the Borrower: (i) has
fulfilled its funding obligations under any and all applicable laws,
regulations and similar requirements of governmental authorities
with respect to each employee benefit or pension plan; (ii) is in
compliance in all material respects with the presently applicable
provisions of such laws, regulations and requirements; and (iii)
except as disclosed in the financial statements referred to in
Section 5.5, has not incurred any liability, indebtedness or
obligation under or in connection with any employee benefit or
pension plan.
Section 5.8 Taxes. There have been filed on behalf of the
-----
Borrower and its Subsidiaries all federal, state and local income,
excise, property and other tax returns which are required to be
filed by them and all taxes due pursuant to such returns or pursuant
to any assessment received by or on behalf of the Borrower or any
Subsidiary have been paid, 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 exists. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are adequate.
United States income tax returns of the Borrower and its
Subsidiaries have been audited by the Internal Revenue Service
through the fiscal year ended March 31, 1996. No tax liens have
been filed and no claims are being asserted with respect to any
such taxes.
Section 5.9 Subsidiaries. Schedule 5.9 hereto contains an
------------ ------------
accurate list of all Subsidiaries of the Borrower as of the date of
this Agreement, setting forth their respective jurisdictions and
forms of organization and the quantity and percentage of their
respective capital stock or other ownership interests owned by the
Borrower or other Subsidiaries. All of the issued and outstanding
shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant
with respect to such ownership interests) duly authorized and
issued and are fully paid and non-assessable. Each of the
Borrower's Subsidiaries is a corporation or other organization
duly organized, validly existing and (to the extent such concept
applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization, is duly qualified
to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary, and has all
corporate or organization powers and all governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
Section 5.10 Not an Investment Company. Neither the Borrower
-------------------------
nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
Section 5.11 Ownership of Property; Liens. Each of the
----------------------------
Borrower and its Subsidiaries has good title, free of all Liens
other than Permitted Encumbrances, to all of the Property and
assets reflected as owned by the Borrower and its Subsidiaries
in the Borrower's most recent consolidated financial statements
provided to the Agent, and such Property and assets are sufficient
for the conduct of its business.
Section 5.12 Material Agreements; Default. Neither the
----------------------------
Borrower nor any of its Subsidiaries 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 Borrower nor any of its Subsidiaries
is in default under or with respect to any agreement, instrument
or undertaking to which it is a party or by which it or any of
its Property is bound (x) which default could reasonably be
expected to have a Material Adverse Effect or (y) which agreement,
instrument or undertaking evidences or governs Indebtedness. No
Default or Unmatured Default has occurred and is continuing.
Section 5.13 Full Disclosure. No information, exhibit or
---------------
report furnished by the Borrower or any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation of, or
compliance with, 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. The Borrower has disclosed to the Lenders in writing
any and all facts which may (to the extent the Borrower can now
reasonably foresee) have a Material Adverse Effect.
Section 5.14 Environmental Matters. In the ordinary course
---------------------
of its business, the officers of the Borrower consider the effect
of Environmental Laws on the business of the Borrower and its
Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Borrower due to
Environmental Laws. On the basis of this consideration, the
Borrower has concluded that Environmental Laws cannot reasonably
be expected to have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary has received any notice to the effect
that its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject
of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic
or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected
to have a Material Adverse Effect. Except as disclosed in
Schedule 5.14(a) hereto and by this reference made a part hereof:
- ----------------
neither the Borrower nor any Subsidiary has been designated as a
potentially responsible party under CERCLA or any other
Environmental Law, and none of the Borrower's Property has been
identified on any current or proposed (i) National Priorities
List under 40 C.F.R. Section 300, (ii) CERCLIS list or (iii) any
list arising from a state statute similar to CERCLA. No Hazardous
Materials have been or are being used, produced, manufactured,
processed, generated, stored, disposed of, managed at, or shipped
or transported to or from any Property of the Borrower or any
Subsidiary or are otherwise present at, on, in or under any such
Property, or, to the best of the knowledge of the Borrower, at or
from any adjacent site or facility, except for Hazardous Materials
disclosed on Schedule 5.14(b) hereto and by this reference made a
----------------
part hereof, and such Hazardous Materials are produced,
manufactured, processed, generated, stored, disposed of, and
managed in the ordinary course of business in compliance with all
applicable Environmental Laws.
Section 5.15 Insolvency. After giving effect to the
----------
execution and delivery of the Loan Documents and the making of the
Credit Extensions under this Agreement, neither the Borrower nor
any Subsidiary will be "insolvent," within the meaning of such
terms as defined in 101 of Title 11 of the United States Code or
Section 2 of the Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent transfers or
conveyances, as each may be amended from time to time, or be
unable to pay its debts generally as such debts become due, or
have an unreasonably small capital to engage in any business or
transaction whether current or contemplated.
Section 5.16 Compliance with Laws. The Borrower, each of
--------------------
its Subsidiaries and each member of the Controlled Group has
complied with all applicable laws (including but not limited to
ERISA), regulations, rules, 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 (including
but not limited to PBGC), except where any failure to comply with
any of the foregoing could not, alone or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 5.17 Regulation U. Margin stock (as defined in
------------
Regulation U) constitutes less than 25% of the value of those
assets of the Borrower and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
Section 5.18 Public Utility Holding Company Act. Neither
----------------------------------
the Borrower nor any Subsidiary 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.
Section 5.19 Post-Retirement Benefits. The present value of
------------------------
the expected cost of post-retirement medical and insurance benefits
payable by the Borrower and its Subsidiaries to its employees and
former employees, as estimated by the Borrower in accordance with
procedures and assumptions deemed reasonable by the Required
Lenders, does not exceed $25,536,000 as of March 31, 2001.
Section 5.20 Insurance. The Borrower and each of its
---------
Subsidiaries maintains (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its property in at least
such amounts and against at least such risks as are usually
insured against in the same general area by companies of
established repute engaged in the same or similar business.
Section 5.21 Plan Assets; Prohibited Transactions. The
------------------------------------
Borrower is not an entity deemed to hold "plan assets" within
the meaning of 29 C.F.R. Section 2510.3-101 of an employee benefit
plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), the Borrower is an "operating company" as defined in 29
C.F.R. Section 2510-101(c), and neither the execution of this
Agreement nor the making of Credit Extensions hereunder gives rise
to a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
ARTICLE 6
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
Section 6.1 Information. The Borrower will maintain, for
-----------
itself and each Subsidiary, a system of accounting established and
administered in accordance with generally accepted accounting
principles, and deliver to the Lenders:
(a) within 90 days 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
generally accepted accounting principles and required or approved
by the Borrower's independent certified public accountants) audit
report certified by PricewaterhouseCoopers LLP or other
independent certified public accountants acceptable to the
Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated and consolidating basis
(consolidating statements need not be certified by such
accountants) for itself and its Subsidiaries, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus 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;
(b) within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated and consolidating unaudited balance
sheets as at the close of each such period and consolidated and
consolidating profit and loss statements and a statement of cash
flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its Treasurer,
Controller or Chief Financial Officer;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate in the form of Exhibit B attached hereto of the
---------
Treasurer, Controller or Chief Financial Officer of the Borrower
(i) setting forth in reasonable detail the calculations required
to establish whether the Borrower was in compliance with the
requirements of Sections 6.3, 6.4, 6.5, 6.9, 6.16, 6.18, 6.19,
6.20 and 6.22 on the date of such financial statements and (ii)
stating whether any Default or Unmatured Default exists on the
date of such certificate and, if any Default or Unmatured Default
then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect
thereto;
(d) within five Business Days after the Borrower becomes
aware of the occurrence of any Default or Unmatured Default or of
the occurrence of any other development, financial or otherwise, that
could reasonably be expected to have a Material Adverse Effect, a
certificate of the Treasurer, Controller or Chief Financial
Officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with
respect thereto;
(e) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower or any of its
Subsidiaries shall have filed with the Securities and Exchange
Commission;
(g) as soon as possible, and in any event within 10 days
after any member of the Controlled Group (i) knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed
by the Chief Financial Officer, Treasurer or Controller of the
Borrower, describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto, along with a
copy of any notice of such Reportable Event given or required to
be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice;
(h) promptly upon the execution and delivery thereof,
notice of any waiver, consent, modification or amendment of or to
the Note Purchase Agreement, together with a copy of the
documentation relating thereto; and
(i) from time to time such additional information
regarding the financial position or business of the Borrower and
its Subsidiaries as the Lenders may reasonably request.
Section 6.2 Inspection of Property, Books and Records.
-----------------------------------------
The Borrower will, and will cause each Subsidiary to, permit the
Agent and the Lenders, by their respective representatives and
agents, to visit and inspect their respective properties in order
to: (a) examine and make abstracts from any of their respective
books and records; and (b) to discuss their respective affairs,
finances and accounts with their respective officers, employees
and independent public accountants. The Borrower agrees to
cooperate and assist in such visits and inspections, in each case
at such reasonable times and as often as may reasonably be
desired; provided, however, that so long as no Default or
Unmatured Default has occurred and is continuing, such visits and
inspections shall not take place more often than once each fiscal
year of the Borrower.
Section 6.3 Restricted Payments. The Borrower will not,
-------------------
nor will it permit any Subsidiary to, declare or make any Restricted
Payment except: (a) the Borrower may declare or make a Restricted
Payment during any fiscal year if, after giving effect to such
Restricted Payment, the aggregate amount of all Restricted Payments
declared or made during such fiscal year (excluding Restricted
Payments permitted under Section 6.3(b)) does not exceed Fifty
Million and No/100 Dollars ($50,000,000) and no Default or
Unmatured Default shall have occurred and be continuing; (b) the
Borrower may declare or make a Stock Purchase Restricted Payment,
if after giving effect to such Stock Purchase Restricted Payment,
the aggregate of all Stock Purchase Restricted Payments declared
or made after December 26, 2001 does not exceed Fifty Million and
No/100 Dollars ($50,000,000) and no Default or Unmatured Default
shall have occurred and be continuing; and (c) any Subsidiary
declare and pay dividends or make distributions to the Borrower
or to a Wholly-Owned Subsidiary. As used herein, "Stock Purchase
Restricted Payment" means a Restricted Payment declared or made by
the Borrower on account of the Borrower's net purchase, redemption,
retirement, acquisition or sale of the Borrower's capital stock
from any employee benefit plan maintained by the Borrower.
Section 6.4 Loans or Advances. Neither the Borrower
-----------------
nor any of its Subsidiaries shall make loans or advances to any
Person except: (a) loans or advances to employees not exceeding
Three Million and No/100 Dollars ($3,000,000) in the aggregate
outstanding made in the ordinary course of business and
consistently with practices existing on December 26, 2001;
(b) deposits required by government agencies or public
utilities; and (c) loans or advances in the ordinary course
of business between the Borrower and its Subsidiaries and
between Subsidiaries; provided that after giving effect to
the making of any loans, advances or deposits permitted by
clause (a), (b) or (c) of this Section, the Borrower will be
in full compliance with all the provisions of this Agreement.
Section 6.5 Investments and Acquisitions.
----------------------------
(a) The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments
in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or
joint venture, or to make any Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other
Investments in existence on the date hereof and described
in Schedule 6.5.
(iii) Investments comprised of capital contributions
(whether in the form of cash, a note, or other assets) to
a Subsidiary or other special-purpose entity created solely
to engage in a Qualified Receivables Transaction.
(iv) Acquisitions for which the total purchase price,
when aggregated with the total purchase price of all other
Acquisitions during the preceding twelve (12) months, does
not exceed $50,000,000; provided, however, that with respect
to any proposed Acquisition for which the total consideration
is $20,000,000 or more, prior to closing such Acquisition the
Borrower shall deliver to the Agent a certificate of the
Treasurer, Controller or Chief Financial Officer of the
Borrower setting forth in reasonable detail financial
calculations demonstrating that, after giving effect to
such Acquisition, no Default or Unmatured Default will
exist on a pro forma basis (assuming that such Acquisition
(and any related incurrence of Indebtedness) had occurred on
the first day of the four-fiscal quarter period ending at
the last fiscal quarter-end).
(b) The Borrower and its Subsidiaries may make and have
outstanding the following other Investments, in addition to the
Investments permitted under Section 6.5(a): (i) loans and
advances in the ordinary course of business between the Borrower
and its Subsidiaries and between Subsidiaries, and (ii) other
Investments, provided that at no time shall the aggregate
outstanding amount of Investments existing and permitted under
this Section 6.5(b)(ii) exceed $40,000,000.
Section 6.6 Negative Pledge. The Borrower will not, nor
---------------
will it permit any Subsidiary to, create, incur or suffer to exist
any Lien in, of or on any of the Property of the Borrower or any of
its Subsidiaries, except for Permitted Encumbrances.
Section 6.7 Maintenance of Existence. Except for corporate
------------------------
reorganizations permitted by Sections 6.9(a) and 6.9(b), the Borrower
shall, and shall cause each Subsidiary to, remain duly incorporated
or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a corporation or (in
the case of the Subsidiaries) other form of organization in its
jurisdiction of incorporation or organization, maintain all
requisite authority to conduct its business in each jurisdiction
in which its business is conducted, and carry on its business in
substantially the same manner and in substantially the same fields
as such business is now carried on and maintained.
Section 6.8 Dissolution. Neither the Borrower nor any of
-----------
its Subsidiaries shall suffer or permit dissolution or liquidation
either in whole or in part or redeem or retire any shares of its
own stock or that of any Subsidiary, except through corporate
reorganization to the extent permitted by Sections 6.9(a) and 6.9(b).
Section 6.9 Consolidations, Mergers and Sales of Assets.
-------------------------------------------
The Borrower will not, nor will it permit any Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other
Person, or discontinue or eliminate any business line or segment,
provided that
- --------
(a) Subsidiaries of the Borrower may merge into the
Borrower or a Wholly-Owned Subsidiary, and
(b) the foregoing limitation on the sale, lease or other
transfer of assets and on the discontinuation or elimination of a
business line or segment shall not prohibit:
(i) sales of inventory in the ordinary course of
business;
(ii) leases, sales or other dispositions of Property
that, together with all other Property of the Borrower and
its Subsidiaries previously leased, sold or disposed of
(other than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion
of the Property of the Borrower and its Subsidiaries;
(iii) any transfer of an interest in accounts or
notes receivable and related assets as part of a Qualified
Receivables Transaction; and
(iv) the liquidation and dissolution of Modine of
Canada, Ltd., Industrial Airsystems, Inc. and Radman, Inc.
Section 6.10 Use of Proceeds. The Borrower will use the
---------------
proceeds of the Credit Extensions for general corporate purposes and
to refinance existing Indebtedness. No portion of the proceeds of
the Credit Extensions will be used by the Borrower, directly or
indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any "margin stock" (as defined
in Regulation U), or for any purpose in violation of any applicable
law or regulation.
Section 6.11 Compliance with Laws; Payment of Taxes and Other
------------------------------------------------
Claims. The Borrower will, and will cause each Subsidiary to, comply
- ------
with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws. The Borrower will, and
will cause each of its Subsidiaries to, (x) 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,
governmental charges and levies upon it or its income, profits or
Property and (y) pay when due all claims for labor, supplies, rent
and other obligations which, if unpaid, might become a lien against
the property of the Borrower or any Subsidiary; except those which
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.
Section 6.12 Insurance. The Borrower will maintain, and will
---------
cause each of its Subsidiaries to maintain (either in the name of the
Borrower or in such Subsidiary's own name), with financially sound
and reputable insurance companies, insurance on all its Property in
at least such amounts and against at least such risks as is
consistent with sound business practice, and the Borrower will
furnish to any Lender upon request full information as to the
insurance carried.
Section 6.13 Change in Fiscal Year. The Borrower will not
---------------------
change its fiscal year without (a) providing the Lenders with prior
written notice of such change; and (b) executing and delivering to
the Lenders, prior to such change, such amendments to this Agreement
and the other Loan Documents as the Lenders may reasonably deem
necessary and appropriate as a result of such change in fiscal year.
Section 6.14 Maintenance of Property. The Borrower will,
-----------------------
and will cause each Subsidiary to, maintain all of its Property and
assets in good condition, repair and working order, and make all
necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at all times.
Section 6.15 Environmental Matters. The Borrower will not,
---------------------
and will not permit any other Person to, use, produce, manufacture,
process, generate, store, dispose of, manage at, or ship or
transport to or from any of its Property any Hazardous Materials
except for Hazardous Materials disclosed on Schedule 5.14(b) hereto
----------------
and by this reference made a part hereof and which are used,
produced, manufactured, processed, generated, stored, disposed of
or managed in the ordinary course of business in compliance with
all applicable Environmental Laws. The Borrower agrees that upon
the occurrence of an Environmental Release it will act immediately
to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not
ordered or otherwise directed to do so. Promptly, and in any
event within 15 Business Days after the Borrower obtains
knowledge thereof, the Borrower shall furnish to the Lenders
written notice of all material Environmental Liabilities, pending,
threatened or anticipated material Environmental Proceedings, and
material Environmental Releases at, on, in, under or in any way
affecting it, any Subsidiary or any of its or their Property or
any adjacent property, and all facts, events, or conditions that
could lead to any of the foregoing.
Section 6.16 Indebtedness. The Borrower will not, nor will
------------
it permit any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(a) The Loans and the Reimbursement Obligations.
(b) Indebtedness described in Schedule 6.16 not
exceeding the commitment limits set forth therein.
(c) Receivables Transaction Attributed Indebtedness.
(d) Indebtedness, in addition to Indebtedness permitted
pursuant to subsections (a)-(c) above, in an aggregate amount at any
time outstanding not to exceed the greater of $50,000,000 or ten
percent (10%) of the Borrower's Consolidated Net Worth.
Section 6.17 Sale of Accounts. The Borrower will not, nor
----------------
will it permit any Subsidiary to, sell or otherwise dispose of any
notes receivable or accounts receivable, with or without recourse,
except (a) sale or assignment of accounts for collection purposes
in the ordinary course of business, and (b) Qualified Receivables
Transactions.
Section 6.18 Financial Covenants.
-------------------
(a) Leverage Ratio. The Borrower will not permit the
--------------
Leverage Ratio, determined as of the end of each fiscal quarter,
to be greater than 3.0 to 1.0.
(b) Interest Expense Coverage Ratio. The Borrower will
-------------------------------
not permit the Interest Expense Coverage Ratio, determined as of the
end of each fiscal quarter, to be less than 2.75 to 1.0.
(c) Minimum Net Worth. The Borrower will at all times
-----------------
maintain the Borrower's Consolidated Net Worth of not less than the
sum of (i) $412,325,600, plus (ii) 50% of the Borrower's Consolidated
Net Income earned in each fiscal quarter, if positive, beginning
with the quarter ending March 31, 2002, plus (iii) 100% of the
amount, if any, by which stockholders' equity of the Borrower is,
in accordance with Agreement Accounting Principles, increased
from time to time as a result of (A) the issuance of any capital
stock of the Borrower, or (B) any Acquisition.
Section 6.19 Guaranties and Material Foreign Subsidiary
------------------------------------------
Pledges. Promptly, and in any event within 30 days, after a Person
- -------
shall become a Specified Domestic Subsidiary that is not a Specified
Domestic Subsidiary on the date hereof, Borrower shall cause such
new Specified Domestic Subsidiary to execute and deliver to the
Agent a Guaranty, along with such other documents, opinions and
information as the Agent may require regarding such Specified
Domestic Subsidiary and the enforceability of such Guaranty.
Promptly, and in any event within 30 days, after a Person shall
become a Material Foreign Subsidiary that is not a Material
Foreign Subsidiary on the date hereof, the Borrower shall cause
the holder(s) of the equity interests of such Material Foreign
Subsidiary (unless such holder(s) is a Foreign Subsidiary) to
execute and deliver to the Collateral Agent a Foreign Subsidiary
Pledge Agreement, along with all certificates evidencing the
shares pledged thereby duly endorsed or accompanied by executed
stock powers and accompanied by such other documents, financing
statements, opinions and information as the Agent or Collateral
Agent may require to assure the Collateral Agent's valid first
priority Lien in the shares pledged thereby, free and clear of
all other Liens (except as may be permitted in such Foreign
Subsidiary Pledge Agreement).
Section 6.20 Rate Management Transactions. The Borrower
----------------------------
will not, nor will it permit any Subsidiary to, enter into or
remain liable under any Rate Management Transactions, except
for Rate Management Transactions that are entered into in the
ordinary course of business of the Borrower or such Subsidiary
and not for speculative purposes.
Section 6.21 Affiliates. The Borrower 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
(i) in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms-length transaction
and (ii) transactions between the Borrower or any Subsidiary, on
the one hand, and any Subsidiary or other special-purpose entity
created to engage solely in a Qualified Receivables Transaction.
Section 6.22 Pledge Agreements. If at any time (a) the
-----------------
aggregate assets of all of the Borrower's Foreign Subsidiaries
in connection with which the Collateral Agent has not received
a Foreign Subsidiary Pledge Agreement exceeds ten percent (10%)
of the consolidated total assets of the Borrower and its
Subsidiaries, or (b) the aggregate Consolidated Adjusted EBITDA
for the four consecutive fiscal quarters most recently ended of
all of the Borrower's Foreign Subsidiaries in connection with
which the Collateral Agent has not received a Foreign Subsidiary
Pledge Agreement exceeds ten percent (10%) of the Borrower's
Consolidated Adjusted EBITDA for such period, the Borrower will,
within 30 days after its senior management becomes aware (or
reasonably should have become aware) of such event, execute and
deliver to the Collateral Agent Foreign Subsidiary Pledge
Agreements (together with related stock certificates,
endorsements, stock powers, financing statements, legal opinions
and other instruments and documents reasonably required by the
Agent or Collateral Agent) with respect to additional Foreign
Subsidiaries to the extent necessary so that, after giving effect
thereto, the threshold levels in clauses (a) and (b) above are
not exceeded.
ARTICLE 7
DEFAULTS
The occurrence of any one or more of the following
events shall constitute a Default:
Section 7.1 The Borrower shall fail to pay when due any
principal of any Loan, shall fail to pay within one Business Day
of when due any Reimbursement Obligation, or shall fail to pay when
due any interest on any Loan or any LC Fee or other fee or other
amount payable hereunder; or
Section 7.2 The Borrower shall fail to observe or perform
any covenant contained in Section 6.1(d), Sections 6.3 through 6.10,
inclusive, or Sections 6.16 through 6.21, inclusive; or
Section 7.3 The Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement (other than
those covered by Section 7.1 or 7.2 above), or the Borrower or any
Subsidiary shall fail to observe or perform any covenant or agreement
contained in any other Loan Document, for thirty (30) days after
the earlier of (i) the first day on which a responsible officer
of the Borrower or Subsidiary has knowledge of such failure, or
(ii) written notice thereof has been given to the Borrower or
Subsidiary by a Lender; or
Section 7.4 Any representation, warranty, certification or
statement made or deemed made by or on behalf of the Borrower in
Article 5 or by or on behalf of the Borrower or any Subsidiary in,
under or in connection with any Loan Document, or any certificate,
financial statement or other document delivered pursuant to any Loan
Document, shall prove to have been incorrect in any material respect
when made (or deemed made); or
Section 7.5 The Borrower or any Subsidiary shall fail to
make any payment in respect of Indebtedness outstanding (other than
the Loans) in an aggregate amount in excess of $10,000,000 when due
or within any applicable grace period; or
Section 7.6 Any event or condition shall occur which results
in the acceleration of the maturity of Indebtedness outstanding in
an aggregate amount in excess of $10,000,000 of the Borrower or any
Subsidiary or the purchase of such Indebtedness by the Borrower
(or its designee) or such Subsidiary (or its designee) prior to
the scheduled maturity thereof or enables (or, with the giving of
notice or lapse of time or both, would enable) the holders of such
Indebtedness or any Person acting on such holders' behalf to
accelerate the maturity thereof or require the purchase thereof
by the Borrower (or its designee) or such Subsidiary (or its
designee) prior to the scheduled maturity thereof, without regard
to whether such holders or other Person shall have exercised or
waived their right to do so, or any Indebtedness outstanding in
an aggregate amount in excess of $10,000,000 of the Borrower or
any Subsidiary 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
Section 7.7 The Borrower or any Subsidiary shall commence
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any Substantial Portion of its property, or shall consent to
any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay, or shall
admit in writing its inability to pay, its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing, or shall fail to contest in good faith any appointment
or proceeding described in Section 7.8; or
Section 7.8 An involuntary case or other proceeding shall
be commenced against the Borrower or any Subsidiary seeking
liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any Substantial Portion of its property, and
such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 45 days; or an order for relief shall
be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
Section 7.9 The Borrower or any member of the Controlled
Group shall fail to pay when due any material amount which it shall
have become liable to pay to the PBGC or to a Plan under Title IV
of ERISA; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not
have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any such Plan or Plans must
be terminated; or
Section 7.10 One or more judgments or orders for the payment
of money in an aggregate amount in excess of $10,000,000 (or the
equivalent thereof in currencies other than Dollars), or one or more
nonmonetary judgments or orders which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, shall be rendered against the Borrower or any Subsidiary,
and such judgment(s) or order(s) shall continue unsatisfied and
unstayed for a period of 45 days; or
Section 7.11 A federal tax lien shall be filed against the
Borrower under Section 6323 of the Code or a lien of the PBGC shall
be filed against the Borrower under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of
25 days after the date of filing, or the Unfunded Liabilities of
all Single Employer Plans shall exceed in the aggregate $10,000,000,
or any Reportable Event shall occur in connection with any Plan; or
Section 7.12 Any Change in Control shall occur; or
Section 7.13 Nonpayment by the Borrower or any Subsidiary of
any Rate Management Obligation when due or the breach by the Borrower
or any Subsidiary of any term, provision or condition contained in
any Rate Management Transaction; or
Section 7.14 Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or
control of, all or any portion of the Property of the Borrower and
its Subsidiaries which, when taken together with all other Property of
the Borrower 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 action occurs, constitutes a
Substantial Portion; or
Section 7.15 Any Guaranty shall fail to remain in full force
or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Guaranty, 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 shall deny that
it has any further liability under any Guaranty to which it is a
party, or shall give notice to such effect; or
Section 7.16 Any Collateral Document shall for any reason fail
to create a valid and perfected first priority security interest in
any collateral purported to be covered thereby, except as permitted
by the terms of any Collateral Document, or any Collateral Document
shall fail to remain in full force or effect or any action shall be
taken to discontinue or to assert the invalidity or unenforceability
of any Collateral Document, or the Borrower shall fail to comply with
any of the terms or provisions of any Collateral Document.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.1 Acceleration; Facility LC Collateral Account.
(a) If any Default described in Section 7.7 or 7.8 occurs
with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder and the obligation and power of the LC Issuer to
issue Facility LCs shall automatically terminate and the Obligations
shall immediately become due and payable without any election or
action on the part of the Agent, the LC Issuer or any Lender and
the Borrower will be and become thereby unconditionally obligated,
without any further notice, act or demand, to pay to the Agent an
amount in immediately available funds, which funds shall be held in
the Facility LC Collateral Account, equal to the difference of
(x) the amount of LC Obligations at such time, less (y) the amount
on deposit in the Facility LC Collateral Account at such time which
is free and clear of all rights and claims of third parties and has
not been applied against the Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required
Lenders) may (i) terminate or suspend the obligations of the
Lenders to make Loans hereunder and the obligation and power of
the LC Issuer to issue Facility LCs, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (ii) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts
payable under this Agreement, make demand on the Borrower to pay,
and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the Agent the Collateral Shortfall
Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(b) 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
Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Agent
the Collateral Shortfall Amount, which funds shall be deposited
in the Facility LC Collateral Account.
(c) The Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account,
apply such funds to the payment of the Obligations and any other
amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or the LC Issuer under the Loan
Documents.
(d) At any time while any Default is continuing,
neither the Borrower nor any Person claiming on behalf of or
through the Borrower shall have any right to withdraw any of the
funds held in the Facility LC Collateral Account. After all of
the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in
the Facility LC Collateral Account shall be returned by the Agent
to the Borrower or paid to whomever may be legally entitled thereto
at such time.
(e) If, within 30 days after acceleration of the
maturity of the Obligations or termination of the obligations of
the Lenders to make Loans and the obligation and power of the LC
Issuer to issue Facility LCs hereunder as a result of any Default
(other than any Default as described in Section 7.7 or 7.8 with
respect to the Borrower) and before any judgment or decree for
the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall
so direct, the Agent shall, by notice to the Borrower, rescind
and annul such acceleration and/or termination.
Section 8.2 Amendments. Subject to the provisions of this
----------
Article 8, the Required Lenders (or the Agent with the consent in
writing of the Required Lenders) and the Borrower 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 Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
-------- -------
agreement shall, without the consent of all of the Lenders:
(a) Extend the final maturity of any Loan, or extend
the expiry date of any Facility LC to a date after the Facility
Termination Date or forgive all or any portion of the principal
amount thereof or any Reimbursement Obligation related thereto,
or reduce the rate or extend the time of payment of interest or
fees thereon or the Reimbursement Obligations related thereto.
(b) Reduce the percentage specified in the definition
of Required Lenders.
(c) Extend the Facility Termination Date, or reduce the
amount or extend the payment date for, the mandatory payments
required under Section 2.3, or, subject to Section 2.26, increase
the amount of the Aggregate Commitment, of the Commitment of any
Lender hereunder or the commitment to issue Facility LCs, or
permit the Borrower to assign its rights under this Agreement.
(d) Release or terminate any Guaranty or, with respect
to a Foreign Subsidiary that remains a Material Foreign Subsidiary,
release or terminate a Foreign Subsidiary Pledge Agreement under
which equity interests in such Foreign Subsidiary are pledged or
release the Agent's security interest in any collateral pledged
under such Foreign Subsidiary Pledge Agreement.
(e) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the
Agent, no amendment of any provision of this Agreement relating
to the Swing Line Lender or any Swing Line Loans shall be
effective without the written consent of the Swing Line Lender,
and no amendment of any provision relating to the LC Issuer shall
be effective without the written consent of the LC Issuer. The
Agent may waive payment of the fee required under Section 12.3(b)
without obtaining the consent of any other party to this
Agreement.
Section 8.3 Preservation of Rights. No delay or omission of
----------------------
the Lenders, the LC Issuer 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 Credit Extension notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such
Credit Extension 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, the LC Issuer and the Lenders
until the Obligations have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
Section 9.1 Survival of Representations. All representations
---------------------------
and warranties of the Borrower contained in this Agreement shall
survive the making of the Credit Extensions herein contemplated.
Section 9.2 Governmental Regulation. Anything contained in
-----------------------
this Agreement to the contrary notwithstanding, neither the LC Issuer
nor any Lender shall be obligated to extend credit to the Borrower in
violation of any limitation or prohibition provided by any applicable
statute or regulation.
Section 9.3 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.
Section 9.4 Entire Agreement. The Loan Documents embody the
----------------
entire agreement and understanding among the Borrower, the Agent, the
LC Issuer and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent, the LC Issuer and the
Lenders relating to the subject matter thereof.
Section 9.5 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, provided, however, that the parties
-------- -------
hereto expressly agree that the Arranger shall enjoy the benefits
of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to
the same extent as if it were a party to this Agreement.
Section 9.6 Expenses; Indemnification.
-------------------------
(a) The Borrower shall reimburse the Agent and the
Arranger for any 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,
distribution (including, without limitation, via the internet),
review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, the
LC Issuer, the Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent, the
LC Issuer, the Arranger and the Lenders, which attorneys may be
employees of the Agent, the LC Issuer, the Arranger or the
Lenders) paid or incurred by the Agent, the LC Issuer, the
Arranger or any Lender in connection with the collection and
enforcement of the Loan Documents. Expenses being reimbursed by
the Borrower under this Section include, without limitation,
costs and expenses incurred in connection with the Reports
described in the following sentence. The Borrower acknowledges
that from time to time Bank One may prepare and may distribute to
the Lenders (but shall have no obligation or duty to prepare or
to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use
by Bank One from information furnished to it by or on behalf of
the Borrower, after Bank One has exercised its rights of
inspection pursuant to this Agreement.
(b) The Borrower hereby further agrees to indemnify
the Agent, the LC Issuer, the Arranger and each Lender, their
respective affiliates, and each of their directors, officers and
employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all
reasonable expenses of litigation or preparation therefor whether
or not the Agent, the LC Issuer, the Arranger or any Lender or
any affiliate is a party thereto) which any of them may pay or
incur 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 Credit Extension 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 Borrower under this
Section 9.6 shall survive the termination of this Agreement.
Section 9.7 Numbers of Documents. All statements, notices,
--------------------
closing documents, and requests hereunder shall be furnished to the
Agent with sufficient counterparts so that the Agent may furnish
one to each of the Lenders.
Section 9.8 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.
Section 9.9 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.
Section 9.10 Nonliability of Lenders. The relationship between
-----------------------
the Borrower on the one hand and the Lenders, the LC Issuer and the
Agent on the other hand shall be solely that of borrower and lender.
Neither the Agent, the LC Issuer, the Arranger nor any Lender shall
have any fiduciary responsibilities to the Borrower. Neither the
Agent, the LC Issuer, the Arranger nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that neither the Agent, the LC
Issuer, the Arranger nor any Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the 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 in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery
is sought. Neither the Agent, the LC Issuer, the Arranger nor
any Lender shall have any liability with respect to, and the
Borrower hereby waives, releases and agrees not to sue for, any
special, indirect, consequential or punitive damages suffered by
the Borrower in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated
thereby.
Section 9.11 Confidentiality. Each Lender agrees to hold
---------------
any confidential information which it may receive from the Borrower
pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to
or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such
Lender is a party, (vi) to such Lender's direct or indirect
contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties,
(vii) permitted by Section 12.4 and (viii) to rating agencies if
requested or required by such agencies in connection with a rating
relating to the Advances hereunder. Each Lender that is in receipt
of confidential information from the Borrower agrees (a) to hold
such information in accordance with such Lender's customary
procedures for handling confidential information of such nature
and in accordance with safe and sound banking practices, (b) not
to use such confidential information for any purpose other than
purposes contemplated by this Agreement, (c) to limit disclosure
of such confidential information to the Persons referred to in
this Section 9.11 having a need to know such information in
connection with purposes contemplated by this Agreement, and
(d) that, unless specifically prohibited by applicable law or
government agency or court order, such Lender shall notify the
Borrower of any request by any governmental authority for
disclosure of any such confidential information prior to making
disclosure of such information, so that the Borrower shall have
the opportunity to seek an appropriate protective agreement or
order limiting disclosure of such information.
Section 9.12 Nonreliance. Each Lender hereby represents
-----------
that it is not relying on or looking to any margin stock (as
defined in Regulation U of the Board of Governors of the Federal
Reserve System) for the repayment of the Credit Extensions provided
for herein.
Section 9.13 Disclosure. The Borrower and each Lender hereby
-----------
acknowledge and agree that Bank One and/or its Affiliates from time
to time may hold investments in, make other loans to or have other
relationships with the Borrower and its Affiliates.
ARTICLE 10
THE AGENT
Section 10.1 Appointment; Nature of Relationship. Bank One,
-----------------------------------
NA is hereby appointed by each of the Lenders as its contractual
representative (herein referred to 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 10. 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 (a) does not
hereby assume any fiduciary duties to any of the Lenders, (b) is
a "representative" of the Lenders within the meaning of the term
"secured party" as defined in the Wisconsin Uniform Commercial
Code and (c) 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.
Section 10.2 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 have no
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.
Section 10.3 General Immunity. Neither the Agent nor any of
----------------
its directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for 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.
Section 10.4 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 (a) any statement, warranty or
representation made in connection with any Loan Document or any
borrowing hereunder; (b) 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; (c) the
satisfaction of any condition specified in Article 4, except
receipt of items required to be delivered solely to the Agent;
(d) the existence or possible existence of any Default or
Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien
in any collateral security; or (g) the financial condition of the
Borrower or any guarantor of any of the Obligations or of any of
the Borrower's or any such guarantor's respective Subsidiaries.
The Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Agent
at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual
capacity).
Section 10.5 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, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Agent shall be under no
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.
Section 10.6 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.
Section 10.7 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.
Section 10.8 Agent's Reimbursement and Indemnification.
-----------------------------------------
The Lenders agree to reimburse and indemnify the Agent ratably
in proportion to their respective Commitments (or, if the
Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (a) for any
amounts not reimbursed by the Borrower for which the Agent is
entitled to reimbursement by the Borrower under the Loan
Documents, (b) 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
(c) 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 of the Loan
Documents or of any such other documents, provided that (i) 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 and (ii) any
indemnification required pursuant to Section 3.5(g) shall,
notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof.
The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this
Agreement.
Section 10.9 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 the 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.
Section 10.10 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 with respect to its
Commitment and its Loans as any Lender and may exercise the same
as though it were not the 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 Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from
engaging with any other Person.
Section 10.11 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 Borrower 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.
Section 10.12 Successor Agent. The Agent may resign at any
---------------
time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment
of a successor Agent or, if no successor Agent has been appointed,
forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the Agent from
the Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders
within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf
of the Borrower and the Lenders, a successor Agent. Notwithstanding
the previous sentence, the Agent may at any time without the consent
of the Borrower or any Lender, appoint any of its Affiliates which
is a commercial bank as a successor Agent hereunder. If the Agent
has resigned or been removed and no successor Agent has been
appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower 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 $100,000,000. Upon the acceptance of any
appointment as 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 or
removal 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
or removal of an Agent, the provisions of this Article 10 shall
continue in effect for the benefit of such Agent in respect of
any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
In the event that there is a successor to the Agent by merger, or
the Agent assigns its duties and obligations to an Affiliate
pursuant to this Section 10.12, then the term "Prime Rate" as
used in this Agreement shall mean the prime rate, base rate or
other analogous rate of the new Agent.
Section 10.13 Agent and Arranger Fees. The Borrower agrees
-----------------------
to pay to the Agent and the Arranger, for their respective accounts,
the fees agreed to by the Borrower, the Agent and the Arranger
pursuant to that certain letter agreement dated February 6, 2002,
or as otherwise agreed from time to time.
Section 10.14 Delegation to Affiliates. The Borrower 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 9 and 10.
Section 10.15 Execution of Collateral Documents. Without
---------------------------------
limiting the power and authority of the Collateral Agent under the
Intercreditor Agreement, the Lenders hereby empower and authorize
the Agent to execute and deliver to the Borrower on their behalf
the Foreign Subsidiary Pledge Agreement(s) and all related
financing statements and any financing statements, agreements,
documents or instruments as shall be necessary or appropriate
to effect the purposes of the Foreign Subsidiary Pledge
Agreement(s).
Section 10.16 Collateral Releases. Without limiting the
-------------------
power and authority of the Collateral Agent under the Intercreditor
Agreement, the Lenders hereby empower and authorize the Agent to
execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to
effect any releases of collateral which shall be permitted by the
terms hereof or of any other Loan Document or which shall otherwise
have been approved by the Required Lenders (or, if required by the
terms of Section 8.2, all of the Lenders) in writing.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
Section 11.1 Setoff. In addition to, and without limitation
------
of, any rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or any Default occurs, any and
all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any Affiliate
of any Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Secured Obligations
owing to such Lender, whether or not the Secured Obligations, or
any part thereof, shall then be due.
Section 11.2 Ratable Payments. If any Lender, whether by
----------------
setoff or otherwise, has payment made to it upon its Outstanding
Credit Exposure (other than payments of Swing Line Loans and
payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in
a greater proportion than that received by any other Lender,
such Lender agrees, promptly upon demand, to purchase a portion
of the Aggregate Outstanding Credit Exposure held by the other
Lenders so that after such purchase each Lender will hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure.
If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that
all Lenders share in the benefits of such collateral ratably
in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such
payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Successors and Assigns. The terms and
----------------------
provisions of the Loan Documents shall be binding upon and inure
to the benefit of the Borrower and the Lenders and their respective
successors and assigns permitted hereby, except that (a) the
Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the prior written
consent of each Lender (b) any assignment by any Lender must be
made in compliance with Section 12.3 and (c) any transfer by
Participation must be made in compliance with Section 12.2.
Any attempted assignment or transfer by any party not made in
compliance with this Section 12.1 shall be null and void, unless
such attempted assignment or transfer is treated as a
participation in accordance with Section 12.3(c). The parties to
this Agreement acknowledge that clause (b) of this Section 12.1
relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without
limitation, (x) any pledge or assignment by any Lender of all or
any portion of its rights under this Agreement and any Note to a
Federal Reserve Bank or (y) in the case of a Lender which is a
fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in
support of its obligations to its trustee; provided, however,
-------- -------
that no such pledge or assignment creating a security interest
shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Agent may treat the Person
which made any Credit Extension or which holds any Note as the
owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided, however, that the
-------- -------
Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Credit Extension or
which holds any Note to direct payments relating to such Credit
Extension or Note to another Person. Any assignee of the rights
to any Credit Extension or any Note agrees by acceptance of such
assignment 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 the rights to any Credit Extension
(whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Credit Extension.
Section 12.2 Participations.
--------------
(a) Permitted Participants; Effect. Any Lender may
------------------------------
at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding
Credit Exposure of 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 owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined
as if such Lender had not sold such participating interests, and
the Borrower 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.
(b) 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 Credit Extension or Commitment in which such
Participant has an interest which forgives principal, interest,
fees or any Reimbursement Obligation or reduces the interest
rate or fees payable with respect to any such Credit Extension
or Commitment, extends the Facility Termination Date, or postpones
any date fixed for any regularly-scheduled payment of principal of
or interest on any Loan in which such Participant has an interest,
or any regularly-scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such
Credit Extension or releases any collateral held in the Facility
LC Collateral Account (except in accordance with the terms
hereof) or all or substantially all of any other collateral, if
any, securing such Credit Extension.
(c) Benefit of Certain Provisions. The Borrower
-----------------------------
agrees that each Participant shall be deemed to have the right of
setoff provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided
--------
that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with
each Lender, any amount received pursuant to the exercise of
its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender. The
Borrower further agrees that each Participant shall be entitled
to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same
extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 12.3, provided that (i) a
--------
Participant shall not be entitled to receive any greater payment
under Section 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received
had it retained such interest for its own account, unless the
sale of such interest to such Participant is made with the
prior written consent of the Borrower, and (ii) any Participant
not incorporated under the laws of the United States of America
or any State thereof agrees to comply with the provisions of
Section 3.5 to the same extent as if it were a Lender.
Section 12.3 Assignments.
-----------
(a) Permitted Assignments. Any Lender may at any
---------------------
time assign to one or more banks or other entities ("Purchasers")
all or any part of its rights and obligations under the Loan
Documents. Such assignment shall be substantially in the form
of Exhibit C or in such other form as may be agreed to by the
parties thereto. Each such assignment with respect to a Purchaser
which is not a Lender or an Affiliate of a Lender or an Approved
Fund shall either be in an amount equal to the entire applicable
Commitment and Outstanding Credit Exposure of the assigning Lender
(unless each of the Borrower and the Agent otherwise consents) or
be in an aggregate amount not less than $5,000,000. The amount of
the assignment shall be based on the Commitment or Outstanding Credit
Exposure (if the Commitment has been terminated) subject to the
assignment, determined as of the date of such assignment or as of
the "Trade Date," if the "Trade Date" is specified in the
assignment.
(b) Consents. The consent of the Borrower shall be
--------
required prior to an assignment becoming effective unless the
Purchaser is a Lender, an Affiliate of a Lender or an Approved
Fund, provided that the consent of the Borrower shall not be
required if a Default has occurred and is continuing. The
consent of the Agent shall be required prior to an assignment
becoming effective unless the Purchaser is a Lender, an Affiliate
of a Lender or an Approved Fund. Any consent required under this
Section 12.3(b) shall not be unreasonably withheld or delayed.
(c) Effect; Effective Date. Upon (i) delivery to
----------------------
the Agent of an assignment, together with any consents required
by Section 12.3(a) and (b), and (ii) payment of a $3,500 fee to
the Agent for processing such assignment (unless such fee is
waived by the Agent), such assignment shall become effective
on the effective date specified in such assignment. The
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 Outstanding Credit Exposure
under the applicable assignment agreement constitutes "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 or on behalf of 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 the
transferor Lender shall be released with respect to the
Commitment and Outstanding Credit Exposure assigned to such
Purchaser without any further consent or action by the Borrower,
the Lenders or the Agent. In the case of an assignment covering
all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to,
those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the
applicable agreement. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply
with this Section 12.3 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Section 12.2. Upon
the consummation of any assignment to a Purchaser pursuant to
this Section 12.3(c), the transferor Lender, the Agent and the
Borrower shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements
so that new Notes or, as appropriate, replacement Notes 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.
(d) Register. The Agent, acting solely for this
--------
purpose as an agent of the Borrower, shall maintain at one of
its offices in Chicago, Illinois a copy of each Assignment and
Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Outstanding Credit Exposure
owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall
be conclusive, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior
notice.
Section 12.4 Dissemination of Information. The 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 Borrower and its
Subsidiaries, including without limitation any information
contained in any Reports, provided that each Transferee and
--------
prospective Transferee agrees to be bound by Section 9.11 of
this Agreement.
Section 12.5 Tax Treatment. If any interest in any Loan
-------------
Document is transferred to any Transferee which is not incorporated
under the laws of the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to comply with the provisions
of Section 3.5(d).
ARTICLE 13
NOTICES
Section 13.1 Notices. Except as otherwise permitted by
-------
Section 2.17 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 the Borrower or the Agent, at its
address or facsimile number set forth on the signature pages
hereof, (y) in the case of any Lender, at its address or
facsimile number set forth below its signature hereto or
(z) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the
purpose by notice to the Agent and the Borrower in accordance
with the provisions of this Section 13.1. 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, or (iii) if given by any other
means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section;
provided that notices to the Agent under Article 2 shall not be
- --------
effective until received.
Section 13.2 Change of Address. The 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 14
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 Borrower, the
Agent, the LC Issuer and the Lenders and each party has notified
the Agent by facsimile transmission or telephone that it has
taken such action.
ARTICLE 15
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 15.1 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 (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
WISCONSIN, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
Section 15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY
-----------------------
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, THE LC ISSUER
OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE
BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN CHICAGO, ILLINOIS.
Section 15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT,
--------------------
THE LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC
Issuer, the Swing Line Lender and the Agent have executed this
Agreement as of the date first above written.
MODINE MANUFACTURING COMPANY
By: s/D. B. Spiewak
-----------------------------------
Title: Treasurer
1500 DeKoven Avenue
Racine, Wisconsin 53403-2552
Attention: D.B. Spiewak, Treasurer
Telephone: (414-636-1288)
FAX: (414-636-1818)
Commitments
- -----------
$25,000,000 BANK ONE, NA (Main Office Chicago), as
the Agent, as the Swing Line Lender,
as the LC Issuer and as a Lender
By: s/A. F. Maggiore
----------------------------------
Anthony Maggiore
Title: Director
Banc One Capital Markets, Inc.
111 East Milwaukee Avenue, WI1-2042
Milwaukee, Wisconsin 53202
Attention: Anthony Maggioree
---------------------------
Telephone: 414-765-3111
FAX: 414-765-2625
$20,000,000 SUNTRUST BANK, as a Lender
By: s/William C. Humphries
-------------------------------------
William C. Humphries
Title: Director
303 Peachtree Street, NE, 10th Floor
Atlanta, Georgia 30308
Attention: William C. Humphries
Telephone: 404-724-3931
FAX: 404-588-8505
$20,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: s/LeAnne Phillips
---------------------------------
Title: Vice President
1339 Chestnut Street
Philadelphia, PA 19107
Attention: Robert McGill
Telephone: 267/321-6218
FAX: 267/321-6300
$20,000,000 M&I MARSHALL AND ILSLEY BANK, as a Lender
By: s/James R. Miller
----------------------------------
Title: Vice President
770 North Water Street,
Commerical Banking
18th Floor
Milwaukee, Wisconsin 53202
Attention: Commercial Banking
Telephone: 414 765-7779
FAX: 414 765-7625
$13,000,000 THE BANK OF NEW YORK, as a Lender
By: s/Joshua Feldman
----------------------------------
Joshua Feldman
Title: Vice President
One Wall Street, 22nd Floor
New York, New York 10286
Attention: Joshua Feldman
Telephone: 212 635-7906
FAX: 212 635-6434
$13,000,000 COMERICA BANK, as a Lender
By: s/Michael T. Shea
----------------------------------
Title: Vice President
500 Woodward MC 3265
Detroit, Michigan 48226
Attention: Michael T. Shea
Telephone: 313 222-2977
FAX: 313 222-3776
$13,000,000 U.S. BANK NATIONAL ASSOCIATION d/b/a
FIRSTAR BANK, N.A., as a Lender
By: s/ Caroline V. Krider
--------------------------------
Title: Vice President and Senior Lender
777 East Wisconsin Avenue
MK-FC-GLCB
Milwaukee, WI 53202
Attention: Caroline V. Krider
Telephone: 414-765-5971
FAX: 414-765-4632
$13,000,000 NATIONAL CITY BANK, as a Lender
By: s/Stephen E. Green
----------------------------------
Stephen E. Green
Title: Vice President
1 North Franklin, Suite 3600
Chicago, Illinois 60606
Attention: Steve Green
Telephone: 312 384-4611
FAX: 312 240-0301
$13,000,000 WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: s/Mark H. Halldorson
---------------------------------
Mark H. Halldorson
Title: Assistant Vice President
By: s/ Chad Kortgard
---------------------------------
Chad M. Kortgard
Title: Assistant Vice President
Wells Fargo Bank, National
Association
MAC: N9305-031
Sixth and Marquette
Minneapolis, MN 55479
Attention: Mark H. Halldorson
Telephone: 612-667-2101
FAX: 612-667-2276
PRICING SCHEDULE
Applicable Level I Level II Level III Level IV Level V
Margin Status Status Status Status Status
- ----------------------------------------------------------------------
Eurocurrency Rate .75% .875% 1.00% 1.25% 1.375%
- ----------------------------------------------------------------------
Floating Rate 0% 0% 0% 0% 0.125%
- ----------------------------------------------------------------------
Applicable Level I Level II Level III Level IV Level V
Fee Rate Status Status Status Status Status
- ----------------------------------------------------------------------
Standby Letter .75% .875% 1.00% 1.25% 1.375%
of Credit Fee
- ----------------------------------------------------------------------
Commercial Letter .375% .4375% .50% .625% .6875%
of Credit Fee
- ----------------------------------------------------------------------
Commitment Fee .175% .20% .225% .25% .30%
- ----------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements
of the Borrower delivered pursuant to the Credit Agreement.
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
the Leverage Ratio is less than or equal to 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status and (ii) the Leverage
Ratio is less than or equal to 1.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status or Level II Status
and (ii) the Leverage Ratio is less than or equal to 2.0 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status, Level II Status or
Level III Status and (ii) the Leverage Ratio is less than or equal 2.5 to
1.00.
"Level V Status" exists at any date if the Borrower has not qualified
for Level I Status, Level II Status, Level III Status or Level IV Status.
"Status" means Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as
reflected in the then most recent Financials. As of the date of the
Credit Agreement, the Borrower's Status shall be Level II. Adjustments,
if any, to the Applicable Margin or Applicable Fee Rate shall be effective
five Business Days after the Agent has received the applicable Financials.
If the Borrower fails to deliver the Financials to the Agent at the time
required pursuant to the Credit Agreement, then the Applicable Margin and
Applicable Fee Rate shall be the highest Applicable Margin and Applicable
Fee Rate set forth in the foregoing table until five days after such
Financials are so delivered.
SCHEDULE 1
EUROCURRENCY PAYMENT OFFICES OF THE AGENT
Currency Eurocurrency Payment Office
- -------------- ---------------------------
Dollars Bank One, NA
Chicago, Illinois
Euro Bank One, NA
Chicago, Illinois
Japanese Yen Bank One, NA
Chicago, Illinois
SCHEDULE 2
LENDING INSTALLATIONS
Lender Floating Rate Loans Eurocurrency Loans (list all)
- ------------- ------------------- -----------------------------
Bank One, NA Bank One, NA Bank One, NA
Chicago, Illinois Chicago, Illinois
(for all Agreed Currencies)
SunTrust Bank SunTrust Bank SunTrust Bank
Atlanta, Georgia Atlanta, Georgia
(for all Agreed Currencies)
Wachovia Wachovia Bank, Wachovia Bank, National
Bank, National Association Association
National Philadelphia, London, England
Association Pennsylvania (for all Agreed Currencies)
M&I Marshall M&I Marshall and M&I Marshall and Ilsley Bank
and Ilsley Ilsley Bank Milwaukee, Wisconsin
Bank Milwaukee, Wisconsin (for all Agreed Currencies)
The Bank of The Bank of New York The Bank of New York
New York New York, New York New York, New York
(for all Agreed Currencies)
Comerica Bank Comerica Bank Comerica Bank
Detroit, Michigan Detroit, Michigan
(for all Agreed Currencies)
U.S. Bank U.S. Bank National U.S. Bank National
National Association d/b/a Association d/b/a
Association Firstar Bank, N.A. Firstar Bank, N.A.
d/b/a Firstar Minneapolis, Minnesota Minneapolis, Minnesota
Bank, N.A. (for all Agreed Currencies)
National City National City Bank National City Bank
Bank Kalamazoo, Michigan Kalamazoo, Michigan
(for all Agreed Currencies)
Wells Fargo Wells Fargo Bank, Wells Fargo Bank,
Bank, National Association National Association
National San Francisco, San Francisco,
Association California California
(for all Agreed Currencies)